Legal expert: Kagan's Marshall memos “show her doing what she was supposed to do”

Last week, we took on Jan Crawford's deeply flawed CBS Evening News report, which distorted several memos Elena Kagan wrote as a clerk to Supreme Court Justice Thurgood Marshall, falsely painting Kagan as outside the mainstream. In the report, Crawford portrayed the documents -- which have long been publicly available -- as extremely controversial, saying they “show that as a young lawyer, Kagan stood shoulder to shoulder with the liberal left” and that they “seem to show that Kagan had some pretty strong legal views of her own,” which is “going to give Republicans a lot more ammunition to fight against her.”

Indeed, shortly after Crawford's report, Sen. Jeff Sessions, the Ranking Republican on the Judiciary Committee, responded that the memos were “troubling,” and yesterday, Sessions and Sen. Jon Kyl hosted a briefing for reporters to, as described by their press release (available via nexis), “discuss a recently discovered cache of Elena Kagan's controversial memos during her time as a Supreme Court clerk.”

This continued focus on the so-called “controversial” Marshall memos -- which has been fueled by Crawford's report and Senate Judiciary Committee Republicans -- apparently prompted legal expert Eugene Volokh to weigh in on the issue, and in a June 10 post titled, "Judicial Law Clerks' Memos to Their Bosses," he explains that, in fact, Kagan's memos to Marshall "show her doing what she was supposed to do" (emphasis added).

The entire post is worth a read -- particularly the final section in which Volokh specifically takes on Sessions' and Kyl's newest reported attacks on Kagan's memos.

Here are some highlights:

...[O]ne factor in any Justice's decision about whether granting cert would improve the law could be a judgment about whether, if the Court agrees to hear the case, the Court will reach a result that the Justice thinks is right. So I suspect that Justice Scalia and Justice Thomas would feel no qualms about voting to deny certiorari in an abortion case based partly on the judgment that their colleagues would use the case (if certiorari was granted) to broaden abortion rights. Justices Scalia and Thomas have concluded that the Court's decisions recognizing abortion rights are mistaken. And they have no obligation to ignore that conclusion in deciding whether to give the Court another opportunity to broaden its mistake.

Likewise, Justice Brennan or Justice Marshall concluded, rightly or wrongly, that the Constitution should be read as securing fairly broad abortion rights. I see no reason why they should have felt any qualms about voting to deny certiorari in an abortion case based partly on the judgment that their colleagues would use the case to erroneously (in Justices Brennan and Marshall's view) restrict abortion rights.

2. And of course Kagan was a lawyer working for Justice Marshall. Justice Marshall's job was to decide whether to grant certiorari based on whether the Court's decision was likely to clarify or improve the law. Her job was to give Justice Marshall advice based on whether the Court's decision was likely to clarify or improve the law from Justice Marshall's perspective.


Sens. Sessions and Kyl reportedly “highlighted a memo in which Kagan says she's 'shocked' by a government sting operation to catch a child pornographer that involved a Postal Service newsletter called 'Love Land' including ads offering sexually oriented material. Sessions said the language suggests 'a rather personal view, not the dispassionate legal view that you would expect from a law clerk.'”

I don't think that's right: A law clerk working for his Justice has no obligation to be “dispassionate” in a casual exchange, any more than Sen. Sessions' legal aides have such an obligation in casual exchanges with him about proposed legislation (or for that matter about a judicial nominee). And while it's pretty clear that the decision whether to grant certiorari shouldn't be made based on a clerk's “personal view,” it's equally clear that Justice Marshall doesn't much care whether his clerk was shocked by something: He would decide based on his views, personal or otherwise, not based on hers. [emphases added]