In Supreme Court Work, Early Views of Kagan

[alp227]

by Charlie Savage
The New York Times

WASHINGTON — As a young law clerk working for Justice Thurgood Marshall at the Supreme Court in September 1987, Elena Kagan wrote an angry memorandum urging her boss to try to overturn a conservative appeals court ruling that had questioned the constitutionality of a rent-control ordinance.

“All in all, this opinion is outrageous,” wrote Ms. Kagan, who is now a Supreme Court nominee.

The appeals court judge who wrote it, she added, “has flouted the opinions of this court and has reached a result that is sweeping in its implications. Although the decision does not invalidate the ordinance on its merits, it is an authorization for broad, wholesale attacks on rent-control regulation.”

But the Supreme Court decided to let the lower-court ruling stand.

Now, in an era in which the government’s power to encroach on property rights has been a hot issue, Ms. Kagan could face sharp Republican questions at her confirmation hearing about her strong reaction to the rent-control ruling.

The three-page memorandum is one of hundreds Ms. Kagan wrote analyzing petitions to the Supreme Court during its 1987-88 term. Those documents, housed at the Library of Congress, constitute a rare paper trail that provides insight into her early legal policy views. Largely written with a liberal sensibility on a variety of matters from criminal rights to environmental regulations, the memorandums could provide ammunition to conservative critics of her nomination, while comforting liberal skeptics.

Read more: http://www.nytimes.com/2010/06/04/us/politics/04kagan.html?partner=rss&emc=rss&pagewanted=all

[Cha]

1. Thank you, alp.