Is Kagan’s guide to the Constitution WWTD? 

That’s WWTD, as in “What Would Thurgood Do?”

There are grounds for wondering if that might indeed be the case with Solicitor General Elena Kagan, President Obama’s nominee for the Supreme Court to replace the retiring Justice John Paul Stevens.

Kagan has long admired Justice Thurgood Marshall, having clerked for him during the Court’s 1987-88 term. He was the nation’s first Black Supreme Court justice, as well as the first Black Solicitor General and the main impetus behind the legal effort to secure the landmark Brown v. Board of Education ruling that did away with “separate but equal” public schools.

During her confirmation hearing as Solicitor General, Kagan talked at some length about her admiration for Marshall, and noted that he expected his clerks to evaluate petitions for the Court to accept a particular case for review as if they were him.

“He was asking us, in the context in those cert petitions, to channel him and to think about what cases he would want the court to decide,” Kagan said. “And in that context, I think all of us were right to say, ‘Here are the cases which the court is likely to do good things with from your perspective, and here are the ones where they’re not.’”

You can read the entire Bloomberg piece from which that quote was taken here.

Of course, asking a clerk to evaluate a writ of certiori as if he or she was the Justice is not the same thing as saying you would be guided by the same principles as guided the Justice.

Still, there is no doubt that a Justice Kagan would almost certainly be very much influenced by the approach and thoughts of Justice Marshall.

I wonder what might be the reaction if instead of Kagan and Marshall, the discussion here concerned John Roberts saying he would be greatly influenced in his role on the Court by President Ronald Reagan.

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Mark Tapscott

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