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Kagan Backed Broad Interpretation of 14th Amendment
WASHINGTON—As a Supreme Court law clerk in 1987, Elena Kagan read the 14th Amendment as permitting lawsuits against reckless state officials who ignore their duties—reflecting the liberal view that the constitutional guarantee of liberty should be read broadly.
That position was rejected by the court's conservative majority in a 1989 case, DeShaney v. Winnebago County, which narrowly defined what "liberty" the Constitution protects. The court's 6-3 ruling immunized state welfare officials who over the course of a year failed to act when repeatedly alerted to an alcoholic father's violent abuse of his four-year-old son. The continued beatings ultimately put the boy in a coma, destroyed half his brain and left him institutionalized for life, court records say.
Many liberals consider the ruling profoundly flawed, while conservatives praised it for denying recognition to what they call new rights.
The materials appear in the papers of Justice Thurgood Marshall, for whom Ms. Kagan clerked in 1987-88. Law clerks often say they seek to reflect their boss's approach to the law, rather than promote their own. Ms. Kagan's current position on the legal question isn't clear.
President Barack Obama has nominated Ms. Kagan, the solicitor general, to succeed Justice John Paul Stevens on the Supreme Court after he retires this summer. Unlike many other nominees, she has not served as a judge, meaning that there is little paper trail on her positions.
In a September 1987 memo to Justice Marshall, Ms. Kagan observed that the issue was important, and that lower courts had split on whether state officials, who can be sued for wrongful acts, also could be sued for wrongfully failing to act.
Federal appeals courts for the Third Circuit, in Philadelphia, and the Fourth Circuit, in Richmond, Va., had in similar cases sided with plaintiffs. But Judge Richard Posner of the Seventh Circuit, in Chicago, wrote that even though alerted to the abuse, state officials had no duty to protect Joshua DeShaney from his "bestial father."
"The state does not have a duty enforceable by the federal courts to maintain a police force or a fire department, or to protect children from their parents," Judge Posner wrote.
Ms. Kagan believed the Seventh Circuit got it wrong, but advised Justice Marshall to vote against hearing the appeal unless he was certain to have four other justices—making up a majority—on his side. Without such assurance, "I only worry that a majority of this court will agree with Judge Posner that 'the Constitution is a charter of negative rather than positive liberties' and will thereby preclude the approach" of the Third and Fourth circuits.
Ms. Kagan took a similar position on a related issue, advising Justice Marshall to let stand a ruling from the 11th Circuit, in Atlanta, that a local welfare department could be sued for placing a foster child in an abusive home, where beatings left the seven-year-old girl in "an apparently permanent coma."
Judge Joseph Hatchett likened the state's function in placing a child in a foster home to incarcerating prisoners, who cannot be abused during their confinement. He wrote that the 14th Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society," the Supreme Court's standard for applying the Eighth Amendment ban on cruel and unusual punishments.
"With contemporary society's outrage at the exposure of defenseless children to gross mistreatment and abuse, it is time that the law give to these defenseless children at least the same protection afforded adults who are imprisoned as a result of their own misdeeds," Judge Hatchett wrote.
In a November 1987 memo to Justice Marshall, Ms. Kagan characterized that position as "considerably more tenuous" than liability based on an explicit statute. "Some members of this [Supreme] Court will doubtless object" to the holding that the 14th Amendment "imposes such affirmative obligations on state officials." Nonetheless, she concluded, "I think the holding is correct and that this court should let it stand."
The justices ultimately left Judge Hatchett's ruling intact. In the DeShaney case, however, the court agreed with Judge Posner.
The 14th Amendment was intended "to protect the people from the state, not to ensure that the state protected them from each other," Chief Justice William Rehnquist wrote for the majority. It provided "no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual."
The court extended that reasoning in 2005, in a case where police dismissed a terrified mother's pleas to enforce a restraining order against her estranged husband, who had disappeared with their three young daughters, whom he killed later that night. The court voted 7-2 that local authorities were immune from liability.
The DeShaney case is famous in part for the dissent by Justice Harry Blackmun. "Poor Joshua!" he wrote. "Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by [welfare officials], who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except" recording the incidents in their files."
"Our 14th Amendment may be read more broadly or narrowly depending upon how one chooses to read them," he continued. With such a choice, "I would adopt a 'sympathetic' reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging."
But Justice Blackmun wrote only for himself. Justice Marshall instead joined the dissent by Justice William Brennan, which eschewed such emotional terms in favor of a more technical analysis.
Justice Brennan wrote that several factual issues should be determined by a trial court, such as whether welfare officials effectively prevented other means of rescuing Joshua, such as suggesting to relatives and neighbors that the state was on the case and they need not take steps to protect the boy.
The court majority's reasoning has been based on its narrowing interpretation of the 14th Amendment clause providing that no state may "deprive any person of life, liberty, or property, without due process of law."
Some liberals have argued that it would be wiser to ground claims like DeShaney's in another 14th Amendment clause, which bars states from abridging "the privileges or immunities of citizens of the United States."
Since the late 19th century, the Supreme Court has given little significance to the Privileges or Immunities Clause. But scholars across the political spectrum believe that reading is mistaken, and say its diminished status has resulted in limiting rights the framers intended citizens to exercise.
In one unusual alliance, this year they urged the court to strike down handgun bans in Chicago and Oak Park, Ill., on grounds that the ordinances violate the Privileges or Immunities Clause. If the court were to invoke that dormant clause, it could lead to a reevaluation of constitutional theory.
The "right of protection" the court rejected in DeShaney was "unquestionably one of the Privileges or Immunities that the framers of the 14th Amendment considered a fundamental right of all citizens," David Gans, of the liberal Constitutional Accountability Center, wrote in November.
"The court has ignored this text and history in cases like Deshaney… holding that the Due Process Clause does not require state and local governments to protect anyone against threats of harm, even when the government turns a blind eye to known violence," he wrote. "Taking text and history seriously would not only require overruling DeShaney, it would also demand that all persons, citizens as well as aliens, be afforded the right to protection."
Nevertheless, at oral argument the justices seemed unsympathetic to the Privileges or Immunities claim.
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