Elena Kagan
Elena Kagan is an Associate Justice of the Supreme Court of the United States. She was nominated by President Barack Obama on May 10, 2010 and has served since August 7, 2010. Kagan is the fourth woman to become a member of the Court.
Kagan was born and raised in New York City. After graduating from Princeton University, the University of Oxford, and Harvard Law School, she clerked for a federal Court of Appeals judge and for Supreme Court Justice Thurgood Marshall. She began her career as a professor at the University of Chicago Law School, leaving to serve as Associate White House Counsel, and later as policy adviser under President Bill Clinton. After a nomination to the United States Court of Appeals for the D.C. Circuit, which expired without action, she became a professor at Harvard Law School and was later named its first female dean.
In 2009, Kagan became the first female Solicitor General of the United States. President Obama nominated her to the Supreme Court to fill the vacancy arising from the impending retirement of Justice John Paul Stevens. The United States Senate confirmed her nomination by a vote of 63 to 37. She is considered part of the Court's liberal wing but tends to be one of the more moderate justices of that group. She wrote the majority opinion in Cooper v. Harris, a landmark case restricting the permissible uses of race in drawing congressional districts.
Early life
Kagan was born on April 28, 1960, in Manhattan, the second of three children of Robert Kagan, an attorney who represented tenants trying to remain in their homes, and Gloria Kagan, who taught at Hunter College Elementary School. Both her parents were the children of Russian immigrants. Kagan has two brothers, Marc and Irving.Kagan and her family lived in a third-floor apartment at West End Avenue and 75th Street and attended Lincoln Square Synagogue. She was independent and strong-willed in her youth and, according to a former law partner of her father's, clashed with her Orthodox rabbi, Shlomo Riskin, over aspects of her bat mitzvah. "She had strong opinions about what a bat mitzvah should be like, which didn't parallel the wishes of the rabbi," her father's colleague said. Kagan and Riskin negotiated a solution. Riskin had never performed a ritual bat mitzvah before. She "felt very strongly that there should be ritual bat mitzvah in the synagogue, no less important than the ritual bar mitzvah. This was really the first formal bat mitzvah we had," he said. Kagan asked to read from the Torah on a Saturday morning as the boys did, but ultimately read from the Book of Ruth on a Friday night. She now practices Conservative Judaism.
Kagan's childhood friend Margaret Raymond recalled that she was a teenage smoker but not a partier. On Saturday nights, Raymond and Kagan were "more apt to sit on the steps of the Metropolitan Museum of Art and talk." Kagan also loved literature and reread Jane Austen's Pride and Prejudice every year. In her 1977 Hunter College High School yearbook, she is pictured in a judge's robe and holding a gavel. Next to the photo is a quotation from former Supreme Court Justice Felix Frankfurter: "Government is itself an art, one of the subtlest of arts."
Education
Kagan attended Hunter College High School, where her mother taught. The school had a reputation as one of the most elite learning institutions for high school girls and attracted students from all over New York City. Kagan emerged as one of the school's more outstanding students. She was elected president of the student government and served on a student-faculty consultative committee. After graduating, Kagan attended Princeton University, where she earned a Bachelors of Arts summa cum laude in history in 1981. She was particularly drawn to American history and archival research. She wrote a senior thesis under historian Sean Wilentz titled "To the Final Conflict: Socialism in New York City, 1900–1933". In it she wrote, "Through its own internal feuding, then, the SP exhausted itself forever. The story is a sad but also a chastening one for those who, more than half a century after socialism's decline, still wish to change America." Wilentz says Kagan did not mean to defend socialism, noting that she "was interested in it. To study something is not to endorse it."As an undergraduate, Kagan also served as editorial chair of The Daily Princetonian. Along with eight other students, she penned a "Declaration of the Campaign for a Democratic University". It called for "a fundamental restructuring of university governance" and condemned Princeton's administration for making decisions "behind closed doors". Despite the liberal tone of The Daily Princetonian
In 1980, Kagan received Princeton's Daniel M. Sachs Class of 1960 Graduating Scholarship, one of the highest general awards the university confers. This enabled her to study at Worcester College, Oxford. As part of her graduation requirement, Kagan wrote a thesis called "The Development and Erosion of the American Exclusionary Rule: A Study in Judicial Method". It presented a critical look at the exclusionary rule and its evolution on the Supreme Court—in particular the Warren Court. She earned a Master of Philosophy in Politics at Oxford in 1983.
In 1983, at age 23, Kagan entered Harvard Law School. Her adjustment to Harvard's atmosphere was rocky; she received the worst grades of her entire law school career in her first semester. Kagan went on to earn an A in 17 of the 21 courses she took at Harvard. She was also immersed in the law as a summer associate in the law offices of Fried, Frank, Harris, Shriver & Jacobson, a Wall Street firm in New York, where she worked in the litigation department. In 1986 she received a Juris Doctor, magna cum laude, from Harvard Law School, where she was supervisory editor of the Harvard Law Review. Her friend Jeffrey Toobin recalls that Kagan "stood out from the start as one with a formidable mind. She's good with people. At the time, the law school was a politically charged and divided place. She navigated the factions with ease, and won the respect of everyone."
Early career
In 1987 Kagan was a law clerk for Judge Abner J. Mikva of the United States Court of Appeals for the District of Columbia Circuit. She became one of Mikva's favorite clerks; he called her "the pick of the litter". In 1988 Kagan clerked for Justice Thurgood Marshall of the U.S. Supreme Court. Marshall said he hired Kagan to help him put the "spark" back into his opinions as the court had been undergoing a conservative shift since William Rehnquist became Chief Justice in 1986. Marshall nicknamed the Kagan "Shorty".Kagan next entered private practice as a junior associate at the Washington, D.C., law firm of Williams & Connolly. As a junior associate, she drafted briefs and conducted discovery. During her short time at the firm she handled five lawsuits that involved First Amendment or media law issues and libel issues.
In 1991 Kagan became an assistant professor at the University of Chicago Law School. While there she first met Barack Obama, a guest lecturer at the school. While on the UC faculty, Kagan published a law review article on the regulation of First Amendment hate speech in the wake of the Supreme Court's ruling in R.A.V. v. City of St. Paul; an article discussing the significance of governmental motive in regulating speech; and a review of a book by Stephen L. Carter discussing the judicial confirmation process. In the first article, which became highly influential, Kagan argued that the Supreme Court should examine governmental motives when deciding First Amendment cases and analyzed historic draft-card burning and flag burning cases in light of free speech arguments.
In 1993, Senator Joe Biden appointed Kagan as a special counsel for the Senate Judiciary Committee. During this time, she worked on Ruth Bader Ginsburg's Supreme Court confirmation hearings.
Kagan became a tenured professor of law in 1995. According to her colleagues, Kagan's students complimented and admired her from the beginning, and she was granted tenure "despite the reservations of some colleagues who thought she had not published enough".
White House and judicial nomination
Kagan served as Associate White House Counsel for Bill Clinton from 1995 to 1996, when Mikva served as White House Counsel. She worked on such controversial issues plaguing the Clinton administration as the Whitewater controversy, the White House travel office controversy, and Clinton v. Jones. From 1997 to 1999 she worked as Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council. Kagan worked on topics like budget appropriations, campaign finance reform, and social welfare issues. Her work is catalogued in the Clinton Library. Kagan coauthored a 1997 memo urging Clinton to support a ban on late-term abortions: "We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122 and prevent Congress from overriding your veto."On June 17, 1999, Clinton nominated Kagan to the U.S. Court of Appeals for the District of Columbia Circuit, to replace James L. Buckley, who took senior status in 1996. The Senate Judiciary Committee's Republican Chairman, Orrin Hatch, scheduled no hearing, effectively ending her nomination. When the Senate term ended, her nomination lapsed, as did that of fellow Clinton nominee Allen Snyder.
Return to academia
After her service in the White House and her lapsed judicial nomination, Kagan returned to academia in 1999. She initially sought to return to the University of Chicago, but she had given up her tenured position during her extended stint in the Clinton Administration, and the school chose not to rehire her, reportedly due to doubts about her commitment to academia. Kagan quickly found a position as a visiting professor at Harvard Law School. While there, she authored a law review article on United States administrative law, focusing on the president's role in formulating and influencing federal administrative law. The article was honored as the year's top scholarly article by the American Bar Association's Section on Administrative Law and Regulatory Practice.In 2001, Kagan was named a full professor at Harvard Law School and in 2003 she was named dean of the Law School by Harvard University President Lawrence Summers. She succeeded Robert C. Clark, who had served as dean for over a decade. The focus of her tenure was on improving student satisfaction. Efforts included constructing new facilities and reforming the first-year curriculum as well as aesthetic changes and creature comforts, such as free morning coffee. She has been credited for a consensus-building leadership style that defused the school's previous ideological discord.
As dean, Kagan inherited a capital campaign, "Setting the Standard," in 2003. It ended in 2008 with a record-breaking raised, 19% more than the original goal. Kagan made a number of prominent new hires, increasing the size of the faculty considerably. Her coups included hiring legal scholar Cass Sunstein away from the University of Chicago and Lawrence Lessig away from Stanford. She also made an effort to hire conservative scholars, such as former Bush administration official Jack Goldsmith, for the traditionally liberal-leaning faculty.
According to Kevin Washburn, then dean of the University of New Mexico School of Law, Kagan transformed Harvard Law School from a harsh environment for students to one that was much more student-focused.
During her deanship, Kagan upheld a decades-old policy barring military recruiters from the Office of Career Services because she felt the military's "Don't Ask, Don't Tell" policy discriminated against gays and lesbians. According to Campus Progress,
In October 2003, Kagan sent an email to students and faculty deploring that military recruiters had shown up on campus in violation of this policy. The email read in part, "This action causes me deep distress. I abhor the military's discriminatory recruitment policy". She also wrote that it was "a profound wrong—a moral injustice of the first order".
From 2005 to 2008, Kagan was a member of the Research Advisory Council of the Goldman Sachs Global Markets Institute. She received a $10,000 stipend for her service.
By early 2007, Kagan was a finalist for the presidency of Harvard University after Lawrence Summers's resignation the previous year. The position ultimately went to Drew Gilpin Faust instead. Kagan was reportedly disappointed, and law school students threw her a party to express their appreciation for her leadership.
Solicitor General
On January 5, 2009, President-elect Barack Obama announced he would nominate Kagan to be Solicitor General. At the time of her nomination, Kagan had never argued a case before any court. At least two previous solicitors general, Robert Bork and Kenneth Starr, had no previous Supreme Court appearances.The two main questions senators had for Kagan during her confirmation hearings were whether she would defend statutes that she personally opposed and whether she was qualified to be solicitor general given her lack of courtroom experience. Kagan testified that she would defend laws, such as the Defense of Marriage Act, pursuant to which states were not required to recognize same-sex marriages originating in other states, "if there is any reasonable basis to do so". The Senate confirmed her on March 19, 2009, by a vote of 61 to 31. She was the first woman to hold the position. Upon taking office, Kagan pledged to defend any statute as long as there was a colorable argument to be made, regardless of her personal opinions. As Solicitor General, Kagan's job was to act as the lawyer for the United States and defend legislation and executive actions in appeals before the Supreme Court. Thus the arguments she made as Solicitor General were not necessarily indicative of her personal beliefs.
Kagan's first appearance before the Supreme Court was on September 9, 2009, one month before the typical start of a new term in October, in the re-argument of Citizens United v. Federal Election Commission,. During argument, she asked the court to uphold a 1990 precedent that allowed the government to restrict corporations' use of their treasuries to campaign for or against political candidates. As an alternative argument, Kagan further contended that if the court would not uphold precedent, it should keep its ruling narrowly focused on corporations that resembled the petitioning organization, Citizens United, rather than reconsidering the constitutionality of broader restrictions on corporate campaign finance. In a 5-4 decision, the court overturned precedent and allowed corporations to spend freely in elections, a major defeat for the Obama administration.
During her 15 months as Solicitor General, Kagan argued six cases before the Supreme Court. The Washington Post described her style during argument as "confident" and "conversational". She helped win four cases: Salazar v. Buono, United States v. Comstock,, Holder v. Humanitarian Law Project,, and Free Enterprise Fund v. Public Company Accounting Oversight Board,.
Supreme Court
Nomination
Before Obama's election, Kagan was the subject of media speculation as a potential Supreme Court nominee if a Democratic president were elected in 2008. Obama had his first Supreme Court vacancy to fill in 2009 when Associate Justice David H. Souter announced his upcoming retirement. Senior Obama adviser David Axelrod later recounted that during the search for a new justice, Antonin Scalia told him he hoped Obama would nominate Kagan, because of her intelligence. On May 13, 2009, the Associated Press reported that Obama was considering Kagan, among others. On May 26, 2009, Obama announced that he had chosen Sonia Sotomayor.On April 9, 2010, Justice John Paul Stevens announced he would retire at the start of the Court's summer 2010 recess, triggering new speculation about potential replacements, and Kagan was once again considered a contender. In a Fresh Dialogues interview, Jeffrey Toobin, a Supreme Court analyst and Kagan's friend and law school classmate, speculated that she would be Obama's nominee, describing her as "very much an Obama-type person, a moderate Democrat, a consensus builder". This alarmed some liberals and progressives, who worried that "replacing Stevens with Kagan risks moving the Court to the right, perhaps substantially to the right".
On May 10, 2010, Obama nominated Kagan to the Supreme Court. The deans of over one-third of the country's law schools, 69 people in total, endorsed the nomination in an open letter in early June. It lauded what it called her coalition-building skills and "understanding of both doctrine and policy" as well as her written record of legal analysis.
Confirmation hearings
Kagan's confirmation hearings before the Senate Judiciary Committee began on June 28. As they began, Kagan was expected to be confirmed, with Republican Senator John Cornyn calling Kagan "justice-to-be". During the hearings, she demonstrated a deep knowledge of Supreme Court cases, expounding upon cases Senators mentioned in their questions to her and doing so without taking notes on the questions. A number of Democratic senators criticized recent decisions of the court as "activist", but Kagan avoided joining in their criticisms. Like many prior nominees, including Chief Justice John Roberts, she declined to answer whether she thought particular cases were correctly decided or how she would vote on particular issues. Republican Senator John Kyl and Democratic Senator Arlen Specter criticized her evasiveness. Specter said it obscured the way justices actually ruled once on the court. He noted that Kagan published an article in the Chicago Law Review in 1995 in which she criticized the evasiveness she came to practice. Republican Senators criticized Kagan's background as more political than judicial; Kagan responded by promising she would be impartial and fair. On July 20, 2010, the Senate Judiciary Committee voted 13–6 to recommend Kagan's confirmation to the full Senate. On August 5 the full Senate confirmed her nomination by a vote of 63–37. The voting was largely along party lines, with five Republicans supporting her and one Democrat opposing.Kagan's swearing-in ceremony took place on August 7, 2010, at the White House. Chief Justice John Roberts administered the prescribed constitutional and judicial oaths of office, at which time she became the 112th justice of the Supreme Court. She is the first person appointed to the Court without any prior experience as a judge since William Rehnquist and Lewis F. Powell Jr., who both became members in 1972. She is also the fourth female justice in the court's history, and the eighth Jewish justice.
Tenure
Ideologically, Kagan is part of the Supreme Court's liberal wing: she voted with the liberal bloc in King v. Burwell,, finding that Obamacare's subsidies and individual mandate are constitutional, and in Obergefell v. Hodges,, which prohibits states from outlawing same-sex marriage. In 2018, Slate observed that Kagan had crossed ideological lines on multiple cases during the proceeding term, and considered her to be part of a centrist bloc along with Justices Roberts, Stephen Breyer, and Anthony Kennedy. Still, FiveThirtyEight observed that Kagan voted with her more liberal peers, Ginsburg and Sotomayor, over 90% of the time. Also during the 2017–2018 term, Kagan most commonly agreed with Breyer; they voted together in 93% of cases. She agreed least often with Justice Samuel Alito, in 58.82% of cases.Because of her service as solicitor general, Kagan recused herself from 28 out of the 78 cases heard during her first year on the court to avoid conflicts of interest. In 2017, Kagan recused herself from the immigrant-detention case Jennings v. Rodriguez because she authorized a filing in the case when she was solicitor general.
Circuit assignment
Kagan is assigned to the Ninth Circuit, the largest US circuit court by geographic area. It includes Alaska, Arizona, California, Guam, Hawaii, Idaho, Oregon, Montana, Nevada, the Northern Mariana Islands, and Washington state. Circuit justices are principally responsible for responding to emergency requests. Kagan had previously been responsible for the Sixth Circuit and the Seventh Circuit, but upon Brett Kavanaugh's confirmation, these circuits were reallotted to Justices Sotomayor and Kavanaugh and the Ninth Circuit was moved from Justice Roberts to Kagan as of October 2018.Jurisprudence
Kagan's first opinion as a justice, Ransom v. FIA Card Services, was a statutory interpretation case where the court was tasked with determining what income a debtor was allowed to shield from creditors in bankruptcy. In an 8–1 decision, Kagan held that the Chapter 13 Bankruptcy statute precludes a debtor from taking an allowance for car-related expenses if the debtor owns the car outright and does not make loan or lease payments. She reasoned the word "applicable" was key to the statute, and debtors could only take allowances for car-related costs that applied. Kagan wrote the majority opinion in Kimble v. Marvel Entertainment, LLC. In the 6–3 decision in favor of Marvel, she held that a patentee cannot receive royalties after the patent has expired. Kagan's opinion included several references to Spider-Man.First Amendment
Kagan's first dissent came in the First Amendment case Arizona Christian School Tuition Organization v. Winn,. Writing for the liberal wing, she took issue with the majority's creation of an exception to the Establishment Clause of the First Amendment. The majority held that Arizona taxpayers cannot challenge tax credits for those who donate to groups that provide scholarships to religious schools, drawing a distinction between the way the court treats tax credits and grants. Kagan deemed this distinction "arbitrary" because tax credits and grants can be used to achieve the same objectives. She viewed the majority's decision as creating a loophole for governments to fund religion., Stephen Breyer, Kagan, and Neil Gorsuch at President Donald Trump's 2018 State of the Union. The other five justices did not attend the address.
In another Establishment Clause case, Town of Greece v. Galloway,, Kagan wrote a dissent arguing that a prayer at a town council meeting failed to treat all Americans the same regardless of religion. Greece involved a town in New York inviting chaplains, for several years all Christian, to give a prayer before town council meetings. Unlike Marsh v. Chambers,, where the Supreme Court had permitted a state legislature to open with a prayer, Kagan noted the board in Greece was a forum for ordinary citizens. Kagan argued the use of prayer showed a preference for a particular religion and thus violated Americans' First Amendment rights.
Sixth Amendment
Kagan dissented in Luis v. United States,, where the five-justice majority held that the pre-trial freezing of untainted assets not traced back to criminal activity was a violation of a defendant's sixth amendment right to counsel when those assets were needed to retain counsel of the defendant's choosing. The defendant, Sila Luis, had been charged with Medicare fraud, in which prosecutors alleged he illegally charged $45 million for unneeded services. The prosecutors asked a judge to freeze $2 million of Luis's assets, which Luis said she needed to pay legal bills, after she had already spent most of the $45 million she made from the alleged scheme. A prior Supreme Court case, United States v. Monsanto,, held that a court could freeze a defendant's assets pre-trial, including funds obtained through the alleged sale of drugs, even when those assets were being used to hire an attorney. The majority sought to distinguish their holding in Luis from Monsanto based upon the nature of the funds being frozen; Luis's funds were not directly linked to her crime, whereas Monsanto's funds were. Kennedy dissented in Luis because he did not think criminal defendants should be treated differently based on how quickly they spent their illegal proceeds. Kagan agreed with Kennedy that the court's decision created inequity and drew an arbitrary distinction, but further opined that Monsanto might have been wrongly decided. Kagan suggested she would be willing to overturn such precedent in the future, but declined to do so in the case at bar because Luis had not sought that relief. Her vote thus rested on procedural grounds while she expressed skepticism that the government should be able to freeze the assets of a criminal defendant not yet convicted, and thus still benefiting from the presumption of innocence, with a mere showing of probable cause that the property will ultimately be subject to forfeiture.Gerrymandering
Kagan wrote for the majority in Cooper v. Harris,, striking down the configuration of two of North Carolina's congressional districts. The court held the districts' boundaries were unconstitutional because they relied excessively on race and did not pass the strict scrutiny standard of review. In a footnote, Kagan set forth a new principle, that congressional districts drawn with race as the dominant factor may be found to be an unlawful racial gerrymander even if they have another goal, such as sorting voters by political affiliation. Applying this principle to the facts of the case, the Court unanimously struck down North Carolina's District 1, where state lawmakers had increased the state's black voting-age population by 4.1% even though the black population had already been able to elect preferred candidates before the district lines were redrawn. The increase of black voters in District 1 resulted in a decrease of black voters in other districts. The Court also struck down District 12 by a vote of 5–3 for similar shifts in its racial composition. The dissent argued that those challenging the validity of the district had not proved that race caused the change in District 12. Kagan quoted court precedent that race must only be a predominate consideration, and that challengers did not need to prove politics was not a motivating factor.Writing style
In her first term on the Court, Kagan did not write any separate opinions, and wrote the fewest opinions of any Justice on the Court. She wrote only majority opinions or dissents that more senior justices assigned to her, and in which she and a group of justices agreed upon a rationale for deciding the case. This tendency to write for a group rather than herself made it difficult to discern her own views or where she might lean in future cases. She wrote the fewest opinions for the terms from 2011 through 2014, tying with Kennedy in 2011 and 2013.Kagan's writing has been characterized as conversational, employing a range of rhetorical styles. She has said that she approaches writing on the court like she used to approach the classroom, with numerous strategies to engage the reader. Her opinions use examples and analogies to make them more understandable to a broad audience.
Other activities
Like other justices, Kagan makes public appearances when she is not hearing cases. In her first four years on the court, she made at least 20 public appearances. Kagan tends to choose speaking engagements that allow her to speak to students.Time magazine named Kagan one of its Time 100 most influential people for 2013. Former Supreme Court Justice Sandra Day O'Connor wrote the article on Kagan, calling her "an incisive legal thinker" and "excellent communicator". That same year, a painting of the four women to have served as Supreme Court justices, Kagan, Sotomayor, Ginsburg, and O'Connor, was unveiled at the National Portrait Gallery in Washington, D.C. In 2018, Kagan received the Marshall-Wythe Medallionan from William & Mary Law School, and an honorary degree of Doctor of Humane Letters from Hunter College.