Kagan Memos From Marshall Clerkship Provide Insight Into Views On Social Policy

Main Category: Abortion
Also Included In: Litigation / Medical Malpractice
Article Date: 07 Jun 2010 - 0:00 PDT

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Hundreds of memos that Supreme Court nominee Elena Kagan wrote in the late 1980s during a clerkship for former Justice Thurgood Marshall indicate a largely "liberal sensibility" on many issues, including abortion rights, the New York Times reports (Savage, New York Times, 6/4). The documents "show Kagan standing shoulder-to-shoulder with the liberal left, at a time when the Rehnquist Supreme Court was moving to the conservative right," according to CBS News' "Crossroads" (Crawford, "Crossroads," CBS News, 6/3).

Many of the memos demonstrate openness toward the view that the Constitution includes unwritten rights safeguarding personal liberty, the Times reports. This notion, known as the substantive due process doctrine, provided the framework for several significant liberal rulings, including Roe v. Wade.

In one memo from 1988, Kaga described as "ludicrous" a lower court ruling suggesting that the Constitution required a sheriff's office to fund elective abortions for female prisoners. However, Kagan said the court should not hear the case because it likely would "become the vehicle that this court uses to create some very bad law on abortion and/or prisoners' rights."

The extent to which the memos reflect Kagan's current views remains unclear. During confirmation hearings to become solicitor general, Kagan worked to distance herself from the memos, saying her job as a clerk was to "channel" Marshall's views (New York Times, 6/4).

Additional Kagan documents relating to her work as a counsel and domestic policy adviser in the Clinton White House from 1995 to 1999 could be released by the William J. Clinton Presidential Library as early as Friday, the AP/Atlanta Journal-Constitution reports. The roughly 160,000 pages of records cover a period in which the Clinton administration grappled with "a host of hot-button issues," including abortion policy, that could surface during Kagan's confirmation hearings, the AP/Journal-Constitution reports. The hearings are scheduled to begin June 28 (Hirschfeld Davis, AP/Atlanta Journal-Constitution, 6/4).

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