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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Saturday, June 19, 2010

Inside Baseball or; The Education of Elena Kagan

Linda Greenhouse of the New York Times describes how United States Supreme Court Justices Harry A. Blackmun and Thurgood Marshall-- the latter on the advice of his law clerk Elena Kagan-- caused the court to decide DeShaney v. Winnebago County Social Services Department. The decision that resulted not only set a precedent that they would not have wanted, but a precedent that has stood as a bulwark against any tendency to reconsider this conservative decision.
Remember, if you go to an appellate court that chooses its cases-- that has discretionary jurisdiction-- such as the Supreme Court of the United States, the Texas Supreme Court or the Texas Court of Criminal Appeals, you may be able to forecast that if such a court takes your case, it may not only decide against you, but that its decision against you will become an ironclad precedent against any future client you might try to help. I bet that Justice Kagan will be a lot more sophisticated on this point than Justices Brennan, Thurgood Marshall and Blackmun were.

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