Supreme Court Nominee Elena Kagan and the Intent Doctrine

Twenty years ago Supreme Court nominee Elena Kagan, like President Obama who nominated her, would have had little chance of such ascension in our society.

Because these are the types of gains that the Equal Justice Society champions-removing barriers based on race and gender so that our nation’s promise of equal opportunity and equality under the law can be realized for all people—EJS supports President Obama’s nomination of Elena Kagan to the Supreme Court. Her confirmation hearings began today.

Much has been said about the fact that Kagan clerked for Justice Thurgood Marshall, but Kagan does not seem afraid to shatter expectations, including people’s hopes that she might be Justice Marshall’s protégé.

Instead of asking whether Kagan will be the next Thurgood Marshall, which we cannot now know, we should assess her record on the issues Marshall championed, including eradicating structural exclusion and inequality.

As Kagan related in a law review article on Justice Marshall shortly after his death, his stories of growing up in segregated Baltimore and representing African-American defendants in criminal capital cases, as well as his prioritization of social reality, made a profound impression on her. Kagan was very aware of Marshall’s commitment to “eradicating entrenched inequality.”

Her vision of his legacy may reveal more about how she might act on the Supreme Court than what she wrote in the memoranda she churned out as clerk trying not only to analyze the law, but also to anticipate Justice Marshall’s take on the issues.

Although Kagan is certainly not a carbon copy of Justice Marshall, she clearly admired his “solicitude for the despised and disadvantaged.” EJS has studied her record and positions to ascertain what type of Supreme Court justice she would make, especially in regards to racial justice issues.

EJS has issued a brief summary (download PDF) of the good, the not-so-good, and EJS’s hopes and expectations for a new era on the Supreme Court.

2 thoughts on “Supreme Court Nominee Elena Kagan and the Intent Doctrine

  1. It’s very disappointing to have EJS’s support of Ms. Kagan even before the Senate has completed (or barely started) its nomination hearings related to the matter. Your message of support sites a single law review about her take on Thurgood Marshall as somehow indicative of the kind of justice that she would be? It’s hard to fathom that out of the hundreds of perfectly qualified judges (with an actual judicial track record which one could examine), President Obama could only come up with Ms. Kagan as the ultimate candidate in this case. Was it a calcluated risk to avert Republican attacks related to that record? Perhaps, but it also represents an unprecedented leap of faith regarding a life-time appointment to the highest court in the land. I am not convinced that with the current make-up of the Supreme Court, and the many legal challenges our country faces, an untested figure is the best candidate.

  2. It’s very disappointing to have EJS’s support of Ms. Kagan even before the Senate has completed (or barely started) its nomination hearings related to the matter. Your message of support sites a single law review about her take on Thurgood Marshall as somehow indicative of the kind of justice that she would be? It’s hard to fathom that out of the hundreds of perfectly qualified judges (with an actual judicial track record which one could examine), President Obama could only come up with Ms. Kagan as the ultimate candidate in this case. Was it a calcluated risk to avert Republican attacks related to that record? Perhaps, but it also represents an unprecedented leap of faith regarding a life-time appointment to the highest court in the land. I am not convinced that with the current make-up of the Supreme Court, and the many legal challenges our country faces, an untested figure is the best candidate.

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