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A Second Chance for Joshua—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on June 17, 2010.

A Second Chance for Joshua
By Linda Greenhouse ’78 MSL

Two Republican senators find the memos that Elena Kagan wrote as a Supreme Court law clerk to be mysteriously “troubling.” Truth be told, reporters on the Kagan beat have found the memos troubling as well, due to an almost complete absence of news value that has left journalists scrambling to construct articles from the thousands of pages of Kagan-related documents pouring forth in the run-up to the Senate confirmation hearing that begins a week from Monday.

I can’t claim to have looked at more than a small fraction of this output and, when I think of my former colleagues back in the newsroom, my main reaction has been, “There but for the grace of God go I in search of a lead.” But there was one little memo — only three pages — from September 1987 that struck me as worthy of note, not so much for what it says about either the law clerk or the Supreme Court nominee, but for how it recalls a moment when the court faced a particularly interesting fork in the constitutional road. The consequences of the path it chose are with us still.

The subject of the memo was whether the court should agree to hear a case called DeShaney v. Winnebago County Social Services Department. The issue was whether the government has a constitutional duty to protect a person from private harm, from a danger not of the government’s own creation. That is a question to which the classic and easy answer is no. In the lower court decision that was the subject of the appeal, Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit wrote, “The Constitution is a charter of negative rather than positive liberties.”

It is a profound and troubling question nonetheless, because people’s lives today are intertwined with government more intricately and extensively than the Constitution’s framers could have anticipated. The line between public and private is far from distinct. The little boy at the center of the case, Joshua DeShaney, not quite 5 years old and living with his father in Neenah, Wis., was beaten to a pulp and rendered permanently brain-damaged not by the government but by that same father, his custodial parent.

Not the doing of the Winnebago County Social Services Department, surely. But was the department without responsibility or fault? Its caseworkers had been in contact with the family for more than two years, making regular home visits and keeping records of Joshua’s suspicious injuries, some severe enough to put him in the hospital. But none of these government employees intervened to save him, and then it was too late.

His mother, acting on behalf of herself and her son, sued the county on a claim that its negligence amounted to depriving the boy of liberty without due process, in violation of the 14th Amendment. Both the federal district court and the Seventh Circuit rejected this argument.

The mother’s petition to the Supreme Court was ready for review in the summer of 1987, just as a new crop of law clerks was settling in. In the chambers of Justice Thurgood Marshall, the task of making a recommendation on whether the court should hear the DeShaney case fell to Elena Kagan.

In her memo, she described the facts of the case as “horrific.” She noted that two other appeals courts had confronted similar cases and, unlike the Seventh Circuit, had concluded that the “special relationship” between welfare departments and the children under their supervision creates “an affirmative constitutional duty” to protect the children. “It seems clear to me,” she wrote, that the outcome of the DeShaney case would have been different had the Seventh Circuit applied the other circuits’ analysis.

Even more so in the 1980’s than today — before the retirement in 1993 of Justice Byron R. White, who voted to grant review in every such case — a petition representing a “conflict in the circuits” was a prime candidate for review. “This issue is important and there is a circuit split,” Ms. Kagan wrote in her memo to Justice Marshall. But she was reluctant to recommend a vote to grant review. She was worried, she told the justice, that a majority of the Supreme Court would agree with Judge Posner’s take on the case, thus converting a minority view among the circuits into the law of the land.

She therefore advised Justice Marshall to wait and see what the other justices did. She recommended what she called a “join 4” — a misnomer by a new law clerk for a practice that the justices actually call “join 3.” Since it takes four votes to grant a case, justices who are on the fence but who want to be collegial sometimes indicate that they will vote to grant if three others have already done so. Justice Marshall scrawled “Join 3” at the top of his law clerk’s typed memo.

Justice Harry A. Blackmun’s file on the case offers additional perspective on what happened next. Justice Blackmun also voted to “join 3,” and on the first round, the petition was denied, with only Justice White and Justice William J. Brennan Jr. voting outright to grant it. Justice White then circulated an opinion dissenting from the denial, emphasizing the significance of the circuit conflict. At this point, Justices Marshall and Blackmun voted to grant, and the case was accepted.

Nearly six months had passed by this time; it was March 1988, too late to schedule the argument during the months that remained both of the term and of Elena Kagan’s clerkship. She had nothing more to do with the case, which was argued the following November and decided in February 1989.

Her fears proved well founded. The vote was 6 to 3 to affirm the decision of the Seventh Circuit. Chief Justice William H. Rehnquist wrote for the majority that the due process clause “is phrased as a limitation on the state’s power to act, not as a guarantee of certain minimal levels of safety and security.” The chief justice said that “the most that can be said of the state functionaries in this case is that they stood by and did nothing when suspicious circumstances dictated a more active role for them.” The people of Wisconsin were free to impose liability in such circumstances under state law, he added, “but they should not have it thrust upon them by this court’s expansion of the due process clause of the 14th Amendment.”

Justices Brennan, Marshall and Blackmun dissented. Justice Blackmun’s lament of “Poor Joshua!” became a well-known epitaph for the case. Justice Brennan, in an opinion that all three dissenters signed, criticized the majority’s “failure to see that inaction can be every bit as abusive of power as action, that oppression can result when a state undertakes a vital duty and then ignores it.”

Two decades later, the DeShaney decision remains a subject of contention. It has prompted a large literature, including at least one book (“The DeShaney Case: Child Abuse, Family Rights and the Dilemma of State Intervention,” by Lynne Curry) and many law review articles. Lower courts have cited it hundreds of times. The Supreme Court is regularly asked to revisit the issue and regularly declines, without comment, to do so. Most of the federal circuits have endorsed an exception to the DeShaney no-liability rule for instances when the government itself has played a role in creating a dangerous situation, but the justices have refused to elaborate further.

Three years ago, for example, the court turned down an appeal brought by the family of a man who was stopped by the police in the small town of La Marque, Tex. for driving while apparently intoxicated. Rather than arrest the man, Abner Cravens, who had a brother on the police force, the police sent him on his way. Moments later, back behind the wheel, he crossed the center line into oncoming traffic and died. The suit argued that by releasing Mr. Cravens, the police placed him in danger when, in fact they should have protected him from himself. This was a “state-created danger,” the family argued, that should lead to liability.

A sociologist, John R. Howard, wrote in a 2001 law review article titled “Rearguing DeShaney” that “ultimately, DeShaney is about different visions of society and the uses to which the law is put.” Professor Howard predicted that a future Supreme Court would revisit the question and perhaps make a different “social choice,” one more concerned with “achieving justice” than using “a set of arbitrary and simplistic constructs” to obscure a “complex reality.”

Once confirmed, Elena Kagan will be the youngest justice, with a long prospective tenure. She saw around one corner in her initial encounter with the DeShaney case. She will inevitably have other chances in the coming decades and maybe, with her help, sometime far down the road, the court will get it right.