Kagan Backed Broad Interpretation of 14th Amendment

Kagan Backed Broad Interpretation of 14th Amendment

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.