The Dangers of 'Special Solicitude' in the Courts

Kyl asked Kagan about her writing that Justice Marshall, for whom she clerked, believed that "constitutional interpretation demanded, above all else, that the courts show a special solicitude for the despised and disadvantaged."

Kagan said that the idea that courts show a special solicitude reflected her own belief–not just her characterizing. She said that was a "miraculous" thing about courts–that they treat a person with a level of respect that they may not receive from other branches of government.

While that may be admirable in the abstract, the reality of Justice Marshall’s decisions concerning abortion bears further scrutiny. In his dissents in abortion-related cases, Justice Marshall demonstrated that his “special solicitude for the despised and disadvantaged” actually meant government funding for abortion for Medicaid-eligible women. His view was that children born into poverty faced such difficult lives that it would have been better if their mothers had access to subsidized abortions. This demonstrates the problem with judges’ having “special solicitude” for certain individuals. Their definition of “special solicitude” may be deeply offensive to many and bring great injustices against other humans–in this case, unborn babies.