The AP reports:
Two senior Republican senators criticized Supreme Court nominee Elena Kagan Thursday for memos she wrote as a young law clerk to Justice Thurgood Marshall, saying the papers suggest she lets politics dictate her legal decisions.
Sen. Jon Kyl of Arizona and Jeff Sessions of Alabama said the writings show that Kagan was highly opinionated and wanted to use the law to achieve specific policy results, rather than deciding legal questions on their merits....
The two senators cited notes Kagan wrote to Marshall in which she argued that the Supreme Court shouldn’t take certain cases based on her fear that they would give its conservative majority the chance to scale back abortion and criminal rights, among others....
“They reveal time and time again an effort to reach a certain result in the case,” [Sen. Kyl] said. “There’s a disturbing pattern that evolves here when you read these that suggests that she is more interested in taking a case or not taking it based upon how they can advance the law to suit themselves or play defense against a court that she thinks might make bad law.” ...
I thought this might be a good occasion to talk briefly about the Court’s decisionmaking about petitions for certiorari, a subject that many people haven’t closely focused on. Recall that these were memos from Kagan to her boss, Justice Marshall, in which she was advising him whether he should vote to have the Court grant certiorari (i.e., to have the Court hear the case) or deny certiorari (i.e., to let the lower court decision stand without an opinion by the Court on the merits).
1. Now the grant or denial of certiorari is a discretionary decision on the Court’s part. That’s the point of petitions for certiorari (as opposed to the comparatively rare appeals, which the Court has to consider on the merits but which can only be filed in a limited class of cases). Justices have no obligation to grant or deny any particular case, and there is no legal rule that they are supposed to follow in deciding whether to grant or deny it. Rather, they tend to decide based on whether they think the Court’s agreeing to hear the case would help clarify or improve the law.
This may sound unusual or wrong to people who are used to seeing judges deal with cases that they have a legal obligation to rule on, either at trial or at appeal. But that’s the way the Court’s certiorari jurisdiction is intended to work. (It’s also the way that a similar process works at many state supreme courts.)
The decision to grant certiorari may in part be unrelated to a judgment about what the law ought to be: For instance, the Justices may agree to hear a case because there is disagreement among lower courts, and because it would be good to create a consistent rule, whatever that rule might be.
But one 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. If Justice Marshall had been in the so-called “cert pool,” a group of Justices whose clerks split up the petitions among themselves and then write recommendations to all the Justices in the group, then she would have been obligated to ignore factors that were only relevant to her boss. But Marshall wasn’t in the cert pool; these memos were solely for his benefit.
A Justice will often want to hear his clerk’s own views as well, especially if he chose the clerk thinking that the clerk’s judgment is likely to match his own. A Justice will also often expect some amount of personal commentary by the clerk just because exchanges in a close working relationship will often involve such commentary. But good clerks know that their job is to help their boss; this means that when they mention their own views without any qualifiers, this is either because their boss will likely share the same views or because the relationship allows some amount of such personal chatter as asides to the business at hand.
Given this, it seems to me that Kagan’s memos show her doing what she was supposed to do: evaluating whether the Court was likely to move the law in the direction that Justice Marshall thought was proper. (I believe two of the memos to which the Senators are referring, by the way, are this one and this one.)
3. This of course still leaves the criticism that Justice Marshall’s judgments on the merits were improper — part of an “effort to make law rather than decide law” — and that Kagan’s memos suggest that she was sympathetic to the effort, and would likely do the same herself. That’s an old debate, and I can’t add much to it here.
In this post, I just wanted to explain why the memos’ focus on the other Justices’ likely votes on the merits, odd as it may seem to some, is itself quite sensible. Even a Justice that was a thoroughgoing originalist or textualist or anything else that Sens. Sessions and Kyl might prefer would want to take his colleagues’ likely votes on the merits into account in deciding whether to grant certiorari. And such a Justice would therefore want a law clerk who would take the colleagues’ likely votes into account when making recommendations.
4. Finally, 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.