Elena Kagan’s Connection with Thurgood Marshall

Perhaps the one thing of interest that hasn’t been covered on this blog about Supreme Court nominee Elena Kagan is a one year period of time when she clerked for Justice Thurgood Marshall in the late 1980′s. (For my other posts on Kagan, click here, here, here, here, here, here, here, here, here, here, here, here, here and here.) All of these posts have been designed to predict what kind of Justice Elena Kagan would be when it comes to labor and employment law. As previous posts have pointed out, any prediction is more of a guess because of Kagan’s scant record on this subject.

Justice Marshall’s record isn’t scant. While a member of the Supreme Court, approximately 45 labor and employment cases were decided by the Court. Justice Marshall, known for his liberal approach to most legal issues, delivered an amazing 36 opinions in these cases, usually either writing the majority opinion or a concurring opinion siding with the majority of the Court. The makeup of the Court was quite different when Marshall was a Justice, and he usually had enough allies to carry the day on a labor and employment case. When Marshall retired in 1991, the Court began to become the more conservative court it is today.

In reviewing Marshall’s labor and employment opinions, it’s fair to say that he took an expansive view of employee rights. When considering the recent history of the Supreme Court, Justice Marshall was one of the most liberal members of the Court during the latter half of the 20th century. The question on which the Republican members of the Senate Judiciary Committee focused during Kagan’s confirmation hearings was how much of Marshall had rubbed off on Kagan. Based on her answers, there’s just no way to know.

In addition, it appears that Kagan would have participated in only two of the labor and employment cases decided while Marshall was on the Court. In Mead Corporation v. B. E. Tilley, 490 U.S. 714, Justice Marshall delivered a fairly unremarkable opinion in an Employee Retirement Income Security Act case. In Sheet Metal Workers’ International Association v. Lynn, Justice Marshall again delivered the opinion of the Court in a Labor-Management Reporting and Disclosure Act case, in which Marshall sided with a union member’s right of free speech (a position that he often took in a wide variety of cases).

So, Kagan’s time with Justice Marshall reveals almost nothing in connection with significant labor and employment law issues. It’s probably fair to say that Marshall had an influence on her, but it would be unfair to say she would be as liberal as Marshall was. We simply don’t know enough. Taking her record as a whole, however, it’s likely that her approach to legal issues, including labor and employment, will be with a liberal bent. She will undoubtedly be confirmed. She’ll take the place of a Justice who was a liberal. Thus, she will have little impact on the current court’s 5-4 generally conservative majority. But time will tell. And some justices in the past have been full of surprises, including Justice John Paul Stevens, the justice she will replace.

1. 

   Mary Duran says:

   July 9, 2010 at 12:52 pm

   I sure do miss your daily blogs and I am sure that many others do also.
2. 

   John Phillips says:

   July 11, 2010 at 1:00 pm

   Mary,

   Thanks very much for your kind comment. I hope to get back to daily blogging before long.

   John