Breitbart News has discovered previously unknown handwritten notes from Elena Kagan to radical professor Derrick Bell, sent to Bell as Kagan worked on his seminal 1985 article on Critical Race Theory in the Harvard Law Review (99 Harv. L. Rev. 4).
The notes, which were not among materials presented to the Senate during Justice Kagan’s confirmation hearings, are preserved among Bell’s papers at the New York University archives.
Kagan’s work on Bell’s article was revealed in 2010 by Harvard Law School professor Charles Ogletree, after President Barack Obama nominated her to the Supreme Court. Ogletree cited her “phenomenal edits” on Bell’s “classic” article.
Bell’s article, “The Civil Rights Chronicles,” combined exposition and fiction to argue that the Constitution was–and remains–tainted by white supremacy, and that the United States awaited “a common crisis that will overcome racism” through radical constitutional reform.
Unlike then-Harvard Law Review president Carol Steiker, who corresponded with Bell via typed letter (apparently on a 1980s-vintage dot matrix printer), Kagan chose to write to Bell exclusively on yellow notepad paper. She did not explain her choice to write by hand, save to suggest in one note on Aug. 30, 1985 that she was pressed for time.
Most of Kagan’s notes to Bell concern minor editorial comments on the “Chronicles,” as she and the other editors prepared his article for publication. One interesting passage concerns a legal question that Kagan and Steiker posed about Bell’s attempt to argue for a new constitutional right–a “substantive due process right” to “racial healing”:
As Carol and I told you on the phone, we’re a little bit concerned at the focus on this part of the piece. The doctrinal section centers on the idea of creating a substantive due process right to racial healing. But the reader is left wondering: why wouldn’t the Court strike these laws down on first amendment grounds? It strikes me that the Court would indeed strike these laws down on the ground of free speech or free association.
The section of the article to which Kagan was referring was entitled “The Chronicle of the Slave Scrolls.” In it, the main character, Geneva Crenshaw (who would recur in many of Bell’s writings) tells a fable about finding parchment scrolls on the west coast of Africa inside a model of a slave ship.