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Kagan File, News, Statements

AUL’s Kagan File: The “Week Four” Memo


TO: [Undisclosed Parties]

FROM: Americans United for Life Legal Team

DATE: June 7, 2010

RE: AUL’s Kagan File:  Summary of File June 2-4


Today’s file document is a summary of our memos from last week (June 2nd through June 4th). Our full analyses, including citations, for each of these documents are linked below.

1. The “Pro-life Speech” Memo – In this Memo, we discussed the Supreme Court decision in Citizens United v. Federal Election Commission, the first case argued (and lost) by Elena Kagan as Solicitor General before the Supreme Court. This decision was a victory for the First Amendment, ensuring that nonprofit corporations may exercise their right to political speech.

    In practice, campaign finance reform laws have negatively impacted non-profit policy groups more dramatically than the often vilified “big corporations.” Many non-profits (e.g. pro-life organizations) do not have the resources to meet the requirements of the Federal Election Campaign Act (FECA) and McCain-Feingold campaign finance reform laws, and therefore are limited in their ability to engage in political speech. This is detrimental to society because these organizations often provide the most effective way for member-citizens to vocalize their political views at critical times.

    Since defending the contested law before the Supreme Court, Kagan has not distanced herself from her arguments. It is critical that the Senate Judiciary Committee ask Kagan whether she believes that the government can suppress speech because it does not like the speakers, such as pro-life advocates.

    2. The “Proudest Association” Memo – At an award ceremony held at Harvard Law School in September 2006, Dean Elena Kagan introduced the winner of the annual Peter Gruber Foundation Justice Prize: newly-retired Aharon Barak of the Supreme Court of Israel.  In her remarks, Dean Kagan called Aharon Barak her “judicial hero” and, after stating that there have been many “famous and great judges Harvard Law School [has been] associated with,” Kagan declared that “the Harvard Law School association of which I am most proud is the one with … Aharon Barak.”

      Kagan’s declaration that she was “most proud” of Harvard’s association with Barak was striking for many reasons, including:

      • Barak’s judicial views that contradict important features of the American legal system, including the non-justiciability of political questions and the importance of standing.
      • The vast number of distinguished Americans who are Harvard Law School alums and who have made lasting contributions to our nation’s legal system, including 14 Supreme Court Justices, dozens of federal and state court judges, numerous United States Attorneys General, United States Senators and Representatives, state Governors, law professors, diplomatic figures, cabinet advisors, and two U.S. presidents.

      3. Kagan, Marshall, and Abortion, Part 5 – In April of 1988, Elena Kagan wrote to Justice Marshall that a court order that mandated taxpayers pay for the abortions of inmates was “well-intentioned.”  Despite this view, she thought that legally “parts of it were quite ludicrous.”  Nonetheless, 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.”  Kagan’s memo reveals the following:

        • Her pro-abortion sympathies: Kagan acknowledged that elective abortions are not a part of medical care and that “non-prisoners have no rights to funding for abortions” and that therefore there was no reason “prisoners should have such rights.”  While one would expect she would recommend reversing the lower court for this reason, she did not advocate reviewing the case.
        • Her inconsistent statements about the role of a Supreme Court clerk: Kagan’s memo is not consistent with her prior statements under oath that she was a “27-year-old pipsqueak” who was trying “to facilitate [Justice Marshall’s] work and to enable him to advance his goals and purposes as a Justice.”  The memo frequently states “I think” or “I recommend.”
        • Her desire to put policy above the law: Kagan clearly thought the Court of Appeals had decided the case incorrectly based on the law, and called their reasoning “ludicrous.”  Nonetheless, she 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.”  What did Kagan mean by “bad law on abortion”?  The Court had repeatedly held that taxpayers are not required to fund abortions through their tax dollars.  Was she afraid the court would reinforce this precedent, or that the Court would expand the principle that taxpayers do not have to fund abortions?