Bloomberg has a piece looking at some of Elena Kagan’s memos to Justice Thurgood Marshall during her time as his clerk. The focus is on a memo in which Kagan says she is “not sympathetic” with the case of a man who appealed to the Court that his Second Amendment rights were infringed by his arrest for carrying an unlicensed firearm.
I’m not sure if there is all that much meat on those bones, but a few paragraphs down, there is something else of interest that may clue us in to a Justice Kagan’s strategy for countering the “conservative” wing of the Court — so-called “defensive denials.”
The memos provide clues to Kagan’s potential approach as a justice. Much like Marshall, Kagan might find herself playing defense, at least in her first few years, working strategically to thwart the agenda of a more conservative majority.
Kagan on numerous occasions urged the justice to vote for so-called defensive denials, rejecting appeals from criminal suspects and defendants to prevent his more conservative colleagues from giving more power to police and prosecutors.
She urged rejection of an appeal from an Illinois man whose burglary conviction hinged on evidence discovered when he was stopped, ordered to lie down and searched by police. The search took place even though police lacked the “probable cause” required to make an arrest, Kagan said.
Kagan said she thought the court, if it heard the case, would uphold the conviction. That “would be an awful and perhaps quite consequential holding,” she wrote.
Full story here.