“Questioned by Sen. Richard Durbin about Marshall's approach to capital cases, [Kagan] clarified: Marshall believed "the death penalty was unconstitutional in all its applications," she said, but he also felt he had "a special role in each death penalty case to make sure that there were no special problems in the imposition of the death penalty." Again, and unlike Marshall, Kagan apparently has more confidence in the capital-punishment system and sees no special role for herself in policing the facts of every last execution. …
“Now, soon-to-be Justice Kagan and President Obama sometimes seem to be of the view that this is a sweet but generally outdated view of the courts, an approach that had its time and place 56 years ago. Elections matter, they say. Courts should know their place. But Sen. Al Franken disagreed. He used the hearings to remind Americans that the Roberts court's pro-business rulings have "consistently and intentionally protected and promoted the interests of the powerful over those of individual Americans," when the Supreme Court ought to be doing precisely the opposite. Now, this doesn't mean—as it's fashionable to suggest—that Franken believes the justices should always have a thumb on the scale for "the little guy." But it does mean, as he illustrated at the hearings, that when Supreme Court rulings make it all but impossible for the little guy even to get through the courthouse door, Americans have lost their last refuge.”
—Dahlia Lithwick, in Slate
I wanted to juxtapose those two paragraphs in the article because they illustrate that, while what Sen. Franken said is true of the Roberts court’s rulings in business-litigation cases, it’s also true of the Roberts court’s rulings in most (but, significantly and surprisingly, not all) of the cases that pit the government’s police powers against the individuals. Four three decades now, the ideological right has had three distinct threads concerning the courts and court rulings—pro-business, rote pro-police-powers, and pro-government-powers-in-the-service-of-rightwing-culture-wars-goals.
The rightwing Supreme Court appointees are almost completely pro-business, rote-pro-police-powers, and pro-government-powers-in-the-service-of-rightwing-culture-wars-goals.
Outside the judiciary, there is a strain of thought that is fully libertarian; it is pro-business but also anti-rote-police-powers and anti-government-powers-in-the-service-of-rightwing-culture-wars-goals, but (suffice it to say) this strain of thought is almost entirely unrepresented in the federal judiciary, at each of the three levels of the federal court system. The pro-, pro-, pro- crowd has held a near-stranglehold on Republican judicial selections since 1981.
What Kagan reflects, I think, when she proudly pronounces herself free of Thurgood Marshall’s skepticism about not just the constitutionality of the death penalty itself but also of the constitutionality of its imposition in certain cases is a bias held by many who are and all their lives were sufficiently advanced by race and socioeconomic status to find the criminal (and, for that matter, the civil) justice system reasonably hospitable to their own exercise of their legal rights. She’s speaking not just about certain categories of cases (for example, people who have a very low I.Q. or people who committed the crime when they were younger than, say, 18), but also about particular cases in which there was some serious denial of due process because of the incompetence of court-appointed counsel, or because facts have emerged that place in serious doubt the actual guilt of the defendant. Most of the problems that arise in particular death penalty cases arise on a routine basis in non-death-penalty cases, too.
Sonya Sotomayor seems to understand what Marshall understood, and I expect that Sotomayor will pick up Marshall’s mantle. It won’t be Kagan who does. She’s now made that clear.