Elena Kagan’s Early Politics

In an effort to predict what kind of Supreme Court justice Elena Kagan will be when it comes to labor and employment issues, it will be necessary to look at things that don’t fit neatly into that area of the law. I will try not to stretch too far in seeking to uncover her political leanings that could apply to the labor and employment area, but I’ll admit that a little stretching will be done because although a few things are beginning to be revealed concerning her views, about the only thing we know for sure is that she’s a registered Democrat.

It seems appropriate to take a look as Ms. Kagan’s politics because, despite what nominees say during their confirmation hearings, a person’s politics have a lot to do with her view of legal issus. Here again, however, she has, for the most part, kept her political views to herself. The Daily Princetonian has published an interesting article dealing with Kagan’s political beliefs while she was a student at Princeton. You can read the article in its entirety at http://www.dailyprincetonian.com/2010/05/03/26081.

According to the Princetonian account, “Kagan had a strong interest in political history — especially labor movements and radical politics.” Her senior thesis was on the history of the socialist movement, entitled “To the Final Conflict: Socialism in New York City, 1900-1933.” In her thesis acknowledgements, Kagan says that her brother’s “involvement in radical causes led me to explore the history of American radicalism in the hope of clarifying my own political ideas.” Of course, the fact that she wrote on this topic doesn’t mean she’s a socialist. In fact, her thesis advisor at Princeton has remarked, “Elena Kagan is about the furthest thing from a socialist. Period. And always had been. Period.”

Though her interest in socialism and radical politics may have been purely intellectual, she leaves little doubt that her politics are of the liberal persuasion. In an opinion piece Kagan did for the Princetonian after the Democratic candidate she supported in the New York U.S. Senate race had lost in 1980, she was blunt: “I absorbed . . . liberal principles early. More to the point, I have retained them fairly intact to this day.” She went on to lament the demise of “real Democrats” in this article and express the hope that Americans would become disillusioned with conservative programs and solutions. She also argued that the political future needed a “new, revitalized, perhaps more leftist left.”

Except for her interest in labor movements, the Princetonian  piece does little to flesh out Kagan’s views on labor and employment law issues. It’s also fair to note that the time during which Kagan expressed the views described in the Princetonian was 30 years ago. However, it seems unlikely that her avowed life-long allegiance to liberal politics would be much different today than it was then. What little we can piece together about her early political views gives every indication that she would be a liberal on the Court when it comes to any issues, including labor and employment issues.

That’s not surprising. President Obama wouldn’t have nominated a conservative, and Kagan would be replacing a justice widely regarded as one of the most liberal justices on the Court. During her confirmation hearings, it will be interesting to see how deeply Senators delve into her political views and how deeply Kagan is willing to discuss them. As recent nominees have done, Kagan will undoubtedly try to demur as much as possible. There seems little doubt, however, that Kagan’s liberal views would cause her to be a pro-employee, pro-union justice.

My thanks to April Finn, one of Miller & Martin’s summer clerks, for her help in trying to obtain a reasonable glimpse of what kind of justice Elena Kagan will be from a labor and employment standpoint. Without her assistance, none of the posts about Kagan would be possible. April will be a third year student at Washington and Lee University School of Law.

For other posts on Kagan, click here, here and here, and stay tuned for others.