Thousands of parties petition the Supreme Court to review their case, although the justices generally hear only about 60-80 cases a year. So as a law clerk to Justice Thurgood Marshall, Supreme Court nominee Elena Kagan would have written literally hundreds of memos to her boss advising him on whether to grant or deny these petitions. Of these hundreds of memos, the right-wing Federalist Society chose to post exactly five of them on its website.
By what could only be an amazing coincidence, CBS News’ legal correspondent Jan Crawford selected four of the same five memos as the basis of a report Thursday night. According to Crawford:
Taken together, these documents will be much harder for her to explain away than other, less controversial papers unearthed before her confirmation hearings for Solicitor General. . . . The documents seem to show that Kagan had some pretty strong legal views of her own, and while that might encourage liberals, it’s going to give Republicans a lot more ammunition to fight against her.
As if to prove Crawford’s point, Senator Jeff Sessions (R-AL) responded almost immediately to Crawford’s report with a statement claiming that “Kagan’s memos unambiguously express a leftist philosophy and an approach to the law that seems more concerned with achieving a desired social result than fairly following the Constitution,” and Sessions posted Crawford’s report to his YouTube channel.
These kinds of obviously coordinated attacks are nothing new, but the Fed-Soc/Crawford/Sessions hit on Kagan isn’t just a team effort, it’s also dead wrong. Literally none of the memos cited in Crawford’s report mean what she says they mean.
The first memo cited in Crawford’s report is one recommending that Marshall deny review of a case holding that prisoners have a constitutional right to state funded, “purely elective” abortions. Crawford presents the memo as evidence that Kagan’s views on abortion are somehow subject to attack from the right, but if Crawford had actually bothered to read the memo, she would have come to a very different conclusion. Here is Kagan’s legal analysis of the decision subject to review:
Quite honestly, I think that although all of this decision is well-intentioned, parts of it are ludicrous. Since elective abortions are not medically necessary, I cannot see how denial of such abortions is a breach of the Eighth Amendment obligation to provide prisoners with needed medical care. And given that non-prisoners have no rights to funding for abortions, I do not see why prisoners should have such rights.
One baffles at how Crawford could present Kagan as too pro-choice based on this harsh view of the prisoner’s claim.
- School Segregation
Next, Crawford hones in on a memo where Kagan described a plan to redraw school district lines to ensure that two public school districts were more racially diverse as “amazingly sensible.” In an online supplement to her TV report, Crawford criticizes Kagan for reaching a different result than the Roberts Court reached in a similar case in 2007.
Setting aside the absurdity of attacking Kagan for failing to follow a 2007 decision in a memo she wrote in 1987, there’s a very good reason why Kagan’s memo differs from the Roberts Court’s view. In 1987, the Supreme Court followed its landmark decision in Brown v. Board of Education, which unambiguously endorsed integrated public schools. Sadly, Chief Justice Roberts’ opinion abandoned this view, implausibly claiming that Brown forbids public school districts from taking steps to end segregation. Indeed, Chief Justice Roberts’ opinion was so out of step with the Constitution that it prompted Justice Stevens to note that “no Member of the Court that I joined in 1975 would have agreed with today’s decision.” (Amusingly, when Roberts was up for confirmation, Crawford fawningly described him as a “young, incredibly smart, witty, conservative lawyer who carefully and cautiously defended the positions of the conservative Reagan administration.)
So the fact that Kagan disagrees with the Roberts Court on public school segregation is much more an indictment of Roberts than it is of Kagan.
The most absurd attack in Crawford’s report regards a case where a male New York inmate married a woman in Kansas, and wanted New York to recognize this Kansas marriage despite a New York law preventing certain inmates from marrying. Kagan’s memo made no recommendation to Justice Marshall, but instead concluded that the Court lacked enough information to decide what to do with the case and should issue a “call for response” from New York attorneys who could advise the justices.
Amazingly, Crawford reports that a memo involving a marriage between a man and a woman, where Kagan didn’t even express an opinion, might indicate that she would “find a constitutional right to gay marriage.” One cannot even begin to speculate where Crawford got this idea.
Finally, Crawford repeats a discredited claim that Kagan’s one-paragraph memo in a guns case proves that she is hostile to the Second Amendment. As the Wonk Room has already explained, “[a]t the time Kagan wrote the 1987 memo, Heller was still 21 years away, and then-existing law clearly permitted laws banning firearms for personal use. Just as significantly, Justice Scalia was a member of the Court in 1987, yet he indicated no dissent from the Court’s decision not to hear the case Kagan recommended against their taking up.”
Maybe the next time Crawford recycles the work of the Federalist Society, she’ll actually bother to fact check it first.