In his remarks to former Supreme Court clerk Elena Kagan, Senator John Kyl of Arizona expressed his deep hostility toward “results-oriented judging,” an approach he associated with Justice Thurgood Marshall. Marshall, Kyl said, had wrongly believed “that the Supreme Court exists to advance the agenda of certain classes of litigants,” and Kyl said, disapprovingly, that Kagan had yet to properly disavow Marshall’s discredited judicial philosophy.
Ms. Kagan identified Thurgood Marshall as another of her legal ‘heroes.’ Justice Marshall is a historic figure in many respects, and it is not surprising that, as one of his clerks, she held him in the highest regard. Justice Marshall’s judicial philosophy, however, was not what I would consider mainstream. As he once explained: ‘You do what you think is right and let the law catch up.’ He might be the epitome of a results-oriented judge.
And, again, Ms. Kagan appears to enthusiastically embrace Justice Marshall’s judicial philosophy, calling it ‘a thing of glory.’ In 2003, Ms. Kagan wrote a tribute to Justice Marshall in which she said that, in his view, “It was the role of the courts, in interpreting the Constitution, to protect the people who went unprotected by every other organ of government – to safeguard the interests of people who had no other champion. The Court existed primarily to fulfill this mission.” And later, when she was working in the Clinton Administration, she encouraged a colleague working on a speech about Justice Marshall to emphasize his “unshakable determination to protect the underdog – the people whom no one else will protect.”
Thurgood Marshall’s legal philosophy was so far outside the mainstream that before he was named to the Supreme Court, he had won only 29 of the 32 cases he argued before it as an attorney. In his 24 years on the court, he continued to pursue the radical doctrine that the courts needed to protect the rights of people who were otherwise unprotected.
As the Judiciary Committee continues its hearing, Kyl should make sure to press Elena Kagan to repudiate the results of Marshall’s work as an activist judge. With Marshall in the majority, the Supreme Court ruled:
- That it was unconstitutional for a state to rule that “males must be preferred to females” in probate law .
- That the government could not engage in wiretapping without a warrant .
- That the president was not entitled to obstruct a criminal investigation by claiming “absolute, unqualified” immunity.
- That a grandmother could not be held in violation of zoning laws for allowing her motherless grandson to live in her household.
- That police could not enter someone’s house to make an arrest without a warrant .
- That the death penalty could not be applied to a 15-year-old .
- That Hustler magazine had a free-speech right to make fun of Jerry Falwell .
Is Kagan prepared to defend this sort of judicial meddling? It is John Kyl’s duty to find out.