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Truck loads of documents penned by Supreme Court nominee Elena Kagan have been unearthed leading up to her confirmation hearings next week. One ferreted out by legal observers details her take on a landmark high court ruling – a case from Neenah, Wis. – that’s proved both controversial and widely influential. And it may tell a lot about Kagan.

“The facts in this case are horrific,” she wrote as a clerk for Supreme Court Justice Thurgood Marshall in 1987. Nine-year-old Joshua DeShaney suffered severe brain damage after a beating by his father, whom he was living with in Neenah. The boy’s mother, who was divorced from the father, alleged in a federal lawsuit that child protection officials were liable for his debilitating injuries because they failed to remove him from the home after receiving reports of suspicious injuries for two months.

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The mother sued under the due process clause of the 14^th Amendment, which prohibits states from depriving “any person of life, liberty, or property, without due process of law.” She argued Wisconsin denied her son due process by failing to protect his liberty.

Marshall would eventually vote in the minority that the mother had the right to sue.  Kagan, who must have known his views, offered him quite strategic advice, cautioning Marshall against agreeing to hear the case. She warns that hearing it would likely result in its failure – that a majority of the court would disagree with Marshall and establish an important legal precedent, that governments could only be sued for actions that have negative consequences rather than for inaction that harms citizens.

Lower courts have disagreed on this issue, she noted, and the Supreme Court could weigh in and set the record straight. “I only worry that a majority of this court will agree with (the appeals court) that ‘the Constitution is a charter of negative rather than positive liberties.’”

Kagan advised Marshall to join his colleagues if enough requested a hearing, probably as a gesture of collegiality. The case was heard, and as Kagan predicted, he ended up in the minority. The court ruled in 1989 against the mother 6-3, upholding the court of appeals decision.

The court’s answer was historic. “It’s one of the bedrock cases you teach in a constitutional law course,” says Marquette University’s Ed Fallone, associate professor of law.

Paul Secunda, also an associate professor of law at the university, says the ruling makes it difficult to sue state agencies for negligence. “It’s been widely criticized,” he says. The debate, Secunda says, “breaks down on conservative-progressive lines.” Conservative praise the ruling, but progressives argue government should be required to take a more active role in protecting its citizens, particularly children.

Fallone, however, doubts the Supreme Court will revisit the DeShaney ruling. “It’s become a pretty settled issue,” he says. “Anytime you dial 911 and the police don’t get there in time, are they violating your constitutional rights?”

Secunda suspects the court’s conservative majority has consciously avoided hearing cases that would unearth the DeShaney ruling because they agree with it. According to New York Times columnist Linda Greenhouse, “The Supreme Court is regularly asked to revisit the issue and regularly declines, without comment, to do so.”

Chief Justice William Rehnquist’s majority opinion agreed that the case is “undeniably tragic,” but suing under the 14^th Amendment just isn’t a viable legal recourse, he wrote. The Amendment “is phrased as a limitation on the state’s power to act, not as a guarantee of certain minimal levels of safety and security … It is well to remember once again that the harm was inflicted not by the State of Wisconsin, but by Joshua’s father.  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.”

A 1989 editorial in the Milwaukee Journal criticizes the ruling. “Maybe it would have stretched the Constitution to make that leap (that it protected the boy) – but not very much. The law has always recognized children as a vulnerable class deserving special protection. And who, if not the state, can protect the rights of someone like Joshua who cannot protect himself?”

Marshall sided with the dissenting opinion from Justice William Brennan, who argued along similar lines as the Journal. “I cannot agree that respondents had no constitutional duty to help Joshua DeShaney,” he says. By failing to act, “Wisconsin’s child-protection program effectively confined Joshua DeShaney within the walls of Randy DeShaney’s violent home until such time as (child protection services) took action to remove him.”

Kagan has never been a judge, so researchers have been hard-pressed to predict how she could rule on particular issues. Much of her career has taken its ideological direction from her employer, be it Marshall or President Bill Clinton. It’s unclear whether her advice in the DeShaney case reflected her own views, but it does portray someone who is a deft strategist with a keen eye for how to win.

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