As a young lawyer at high court, Kagan was on guard against Supreme Court’s conservative shift

As Marshall clerk, Kagan was wary of conservatives

WASHINGTON — As a young lawyer working for Justice Thurgood Marshall, Elena Kagan repeatedly expressed her concern that a conservative Supreme Court was looking for ways to cut back on the rights of women, criminal defendants and prisoners.

Documents from Kagan’s year with Marshall show a law clerk who was frequently assessing the politics of the institution. Her memos to the justice are on file in Marshall’s papers at the Library of Congress.

Kagan’s time with Marshall, the groundbreaking lawyer who argued against segregation and later became the first African-American on the court, is likely to be a subject at her confirmation hearing, scheduled to begin in late June. She would be only the sixth justice to have served as a law clerk for the high court, but the only one whose former boss’s papers were public at the time of her nomination.

Some Senate Republicans already have signaled they could make issue an issue of Kagan’s clerkship with Marshall, whom conservatives have branded an activist judge more concerned about outcomes than rules.

“You can’t draw too many conclusions from these memos,” said University of Wisconsin law professor Brad Snyder, who has examined relationships between judges and clerks. “There’s a danger of saying if Kagan clerked for Marshall she must be an off-the-charts liberal. There’s no formula, but it will be interesting what she chooses to say about Thurgood Marshall, the judge, at her confirmation hearings.”

Kagan, 27 when she began working for Marshall in 1987, said in Senate testimony last year that she tried to “channel” Marshall in her memos, not express her own views. Her concerns appear to echo Marshall’s well-established views.

“This case is likely to become the vehicle this court uses to create some very bad law on abortions and/or prisoners’ rights,” Kagan said in a memo in April 1988 about a dispute over abortions for women jail inmates. She advised Marshall to vote to reject an appeal from Monmouth County, N.J., even though she had reservations about a federal appeals court ruling in favor of the inmates.

Kagan said the decision requiring the county to pay for inmates’ elective abortions was “well-intentioned,” but “parts of it are ludicrous.” She said that women generally have no right to have their abortions paid for. “I do not see why prisoners should have such rights,” she said.

The court ultimately turned down the case.

Only once have a Supreme Court nominee’s writings from his days as a clerk ignited a controversy. In 1971, William Rehnquist was awaiting confirmation to the court when a memo surfaced from his time as a law clerk to Justice Robert Jackson.

“I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by my ‘liberal’ colleagues, but I think Plessy v. Ferguson was right and should be reaffirmed,” Rehnquist wrote in 1952 as Jackson and his colleagues considered whether to overturn the 56-year-old precedent and outlaw segregation in public schools.

Rehnquist explained that he was reflecting Jackson’s views, not his own, and he won confirmation in 1971 and then again, as chief justice, in 1986. Jackson’s papers had not yet been made public in 1971, but the memo got out anyway.

Three of the other four justices who once were clerks are serving on the court: John Roberts, the chief justice who worked for Rehnquist; Stephen Breyer, a clerk to Arthur Goldberg; and John Paul Stevens, a clerk for Wiley Rutledge.

Earlier, Byron White worked for Chief Justice Fred Vinson.

Sometimes, a justice’s views will align with the person he served. Stevens drew on Rutledge’s writings in his two opinions in favor of detainees at the Guantanamo Bay, Cuba, naval base.

Breyer, like his former boss Goldberg, is on the court’s liberal side. “But he never says his jurisprudence was affected. He talks about how he approaches the job of working on a collegial court,” said Laura Krugman Ray, a Widener University law professor and author of an upcoming article on Breyer and Goldberg.

The lessons were especially important when Breyer is in dissent, Ray said. “He says, ‘That’s when I think about what Justice Goldberg would say. ‘Look, you lost. You made your best attempt. Don’t agonize. Move on,’” Ray said.

Kagan has spoken often of her admiration for Marshall, whom she regards as the greatest lawyer of the 20th century. By the time she worked for Marshall, he was nearing 80, in poor health and near the end of his court tenure.

The court, too, had changed since he had joined it in 1967, at the tail end of the Earl Warren court. By 1987, Justice William Brennan was the only other remaining link to the court’s liberal heyday.

Kagan’s memos take frequent notice of the change. She didn’t like the outcome of a state court’s review of a California law allowing police officers to detain children who are found out of school during school hours. A 17-year-old high school graduate challenged the law after police officers stopped him.

“I think the action here, as well as the judicial decision affirming it, is problematic,” she said. “I doubt, however that this Court would agree.”

In a lawsuit challenging prosecutors’ use of an attorney as an informant to help incriminate a suspect, Kagan said the action “was sufficiently offensive as to require dismissal of the indictment. I worry only that this court will not agree and will give prosecutors carte blanche to engage in this kind of activity.”

Kagan already has backed away from her comments in a legal fight over government funding for religious organizations. “It would be difficult for any religious organization to participate in such projects without injecting some kind of religious teaching,” she wrote in October 1987. The court allowed the religious groups to receive taxpayer money.

Last year, testifying at her hearing to become solicitor general, Kagan termed her analysis “the dumbest thing I ever heard.”

She probably also will be asked about a four-sentence memo from August 1987 in which she called for rejecting the appeal of a man convicted of carrying an unregistered gun in Washington, D.C.

“I’m not sympathetic,” Kagan wrote of the man’s claim. Twenty years later, the Supreme Court struck down Washington’s handgun ban in a decision that said individuals have a constitutional right to own guns for self-defense and other reasons.

In one area, Kagan took care when her view of the case was certain to differ from Marshall’s. Writing about a death sentence from Illinois, Kagan called the condemned inmate’s claim “pretty weak” and said of a lower court ruling upholding the death sentence, “I can’t honestly say that it was incorrect.”

Still, Marshall, who categorically opposed capital punishment, indicated that he would side with the inmate.