In April of 1988, Elena Kagan wrote to Justice Thurgood Marshall that a court order that mandated taxpayers to pay for the abortions of inmates was “well-intentioned.”[1] The case involved female inmates in the Monmouth County jail who wanted the county to fund their abortions.[2] The Court of Appeals held that female inmates should have their abortions paid for by the taxpayers.[3] Despite Kagan’s view that the Court of Appeals’ decision was “well-intentioned,” she thought that legally “parts of it were quite ludicrous” and “Judge Higginbotham simply went too far.”[4] However, despite Kagan’s belief that the lower court was completely wrong, she recommended Marshall vote against reviewing the case because “this case is likely to become the vehicle that this Court uses to create some very bad law on abortion.”[5] Kagan’s memo reveals her pro-abortion sympathies, her inconsistent statements about the role of a Supreme Court clerk, and her desire to put policy above the law.
Analysis
First, the memo reveals Kagan’s pro-abortion sympathies. She wrote to Marshall, “I think that although all of this decision is well-intentioned, parts of it are ludicrous.”[6] Kagan understood that elective abortions were not a part of medical care, and that “non-prisoners have no rights to funding for abortions.” [7] Therefore, there was no reason “prisoners should have such rights.”[8] Kagan’s belief that the lower court’s decision was “well-intentioned” indicates she thought a ruling expanding abortion rights was a good thing, even if she thought it was wrong on the law.
Second, Kagan’s memo is not consistent with her statements before the Senate that she was a “27-year-old pipsqueak” who was trying “to facilitate his [Justice Marshall’s] work and to enable him to advance his goals and purposes as a Justice.”[9] This memo, along with other memos that were recently given to the Senate Judiciary Committee, frequently states “I think” or “I recommend.”[10] Kagan is espousing her own views, not the views of Marshall.
Third, and possibly most troubling, is Kagan’s insistence on promoting policy over law. Kagan clearly thought the Court of Appeals had decided the case incorrectly based on the law, and called their reasoning “ludicrous.” Despite her conviction that the court below was wrong, however, Kagan still recommended Marshall not review the case because she thought “this case is likely to become the vehicle that this Court uses to create some very bad law on abortion.”[11] What did Kagan mean when she said the case would create “bad law on abortion”? In Beal v. Doe[12] and Maher v. Roe[13], the Court had already determined taxpayers are not mandated to fund abortions through their tax dollars. Was Kagan afraid the Court would reinforce this same precedent, as it had done before in Harris v. McRae[14] (a case argued by Americans United for Life before the United States Supreme Court in which the Court upheld the constitutionality of the Hyde Amendment)? The only reasonable interpretation is that Kagan feared the Court would expand the principle that taxpayers do not have to fund abortions.
Conclusion
At her confirmation hearing, Ms. Kagan should be asked in-depth questions about her memos to Justice Marshall. Why did she think mandatory taxpayer funded abortions for prisoners was “well-intentioned”? Why did she tell the Senate that she was a channel for the ideas of Justice Marshall when it is clear she was stating her own position? And, most importantly, why was she intent on placing policy over the law?
[1] Elena Kagan, Memo to Justice Thurgood Marshall on Lanzaro v. Monmouth County (1988) (Reproduced from the Collections of the Manuscript Division, Library of Congress) (hereinafter, “Marshall Memo II”).
[2] Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 328 (3d Cir. 1987).
[3] Id. at 340-44.
[4] Marshall Memo II, supra n. 1 at 2.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] The Nomination of Thomas Perrelli to be Associate Attorney General; The Nomination of Elena Kagan to be Solicitor General of the United States, 111th Cong. 10 (2009), available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_senate_hearings&docid=f:55828.pdf.
[10] Marshall Memo II, supra n. 1 at 2.
[11] Id.
[12] Beal v. Doe, 432 U.S. 438 (1977).
[13] Maher v. Roe, 432 U.S. 464 (1977).
[14] Harris v. McRae, 448 U.S. 297 (1980).
