|Associate Justice of the Supreme Court|
of the United States
Assumed office |
August 7, 2010
|Nominated by||Barack Obama|
|Preceded by||John Paul Stevens|
|45th Solicitor General of the United States|
March 19, 2009 – May 17, 2010
|Preceded by||Gregory G. Garre|
|Succeeded by||Neal Katyal (Acting)|
|11th Dean of Harvard Law School|
July 1, 2003 – March 19, 2009
|Preceded by||Robert Clark|
|Succeeded by||Martha Minow|
|Deputy Assistant to the President for Domestic Policy|
|Preceded by||Jeremy Ben-Ami|
|Succeeded by||Eric Liu|
April 28, 1960|
New York City, New York, U.S.
Princeton University (BA)|
Worcester College, Oxford (MPhil)
Harvard University (JD)
Elena Kagan (//; born April 28, 1960) is an Associate Justice of the Supreme Court of the United States, nominated by President Barack Obama on May 10, 2010 and confirmed by the U.S. Senate on August 5, 2010. She is the fourth woman to serve as a Justice of the Supreme Court.
Kagan was born and raised in New York City. After attending Princeton University, Worcester College, Oxford and Harvard Law School, she completed federal Court of Appeals and Supreme Court clerkships. 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 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. Then on May 10, 2010, President Barack Obama nominated her to the Supreme Court to fill the vacancy arising from the impending retirement of Justice John Paul Stevens. Confirmed by the United States Senate by a vote of 63 to 37, Kagan was sworn into office on August 7, 2010.
- 1 Early life
- 2 Education
- 3 Early career
- 4 White House and judicial nomination
- 5 Return to academia
- 6 Solicitor General
- 7 Supreme Court
- 8 Recognition
- 9 See also
- 10 References
- 11 Sources
- 12 External links
Kagan was born on the Upper West Side of Manhattan, the middle of three children. Her father, Robert Kagan, was an attorney, and her mother, Gloria (Gittelman) Kagan, taught at Hunter College Elementary School. Kagan has two brothers who are public school teachers.
Kagan and her family lived in a third-floor apartment at West End Avenue and 75th Street and attended Lincoln Square Synagogue. Kagan was independent and strong-willed in her youth and, according to a former law partner of her father, clashed with her Orthodox rabbi 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," said her former colleague. "But they finally worked it out. She negotiated with the rabbi and came to a conclusion that satisfied everybody." Kagan's rabbi, Shlomo 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," said Riskin. Kagan asked to read from the Torah on a Saturday morning but ultimately read on a Friday night, May 18, 1973, from the Book of Ruth. Today, she identifies with Conservative Judaism.
Childhood friend Margaret Raymond recalled that Kagan was a teenage smoker but not a partier. On Saturday nights, she and Kagan were "more apt to sit on the steps of the Metropolitan Museum of Art and talk." Kagan also loved literature and re-read Jane Austen's Pride and Prejudice every year. In her Hunter College High School yearbook of 1977, Kagan was pictured in a judge's robe and holding a gavel. Next to her photo was a quote from former Supreme Court Justice Felix Frankfurter: "Government is itself an art, one of the subtlest of arts."
Kagan attended Hunter College High School where her mother still taught classes. The school had a reputation as one of the most elite learning institutions for high school girls and it attracted students from all over the city. Kagan managed to emerge as one of the school's more outstanding students. While attending Hunter, she was elected president of the student government and she also served on a student-faculty consultative committee.
After graduating from high school, Kagan attended Princeton University, where she earned an A.B., summa cum laude in history in 1981. Among the subjects she studied was the socialist movement in New York City in the early 20th century. 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 [Socialist Party] 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 insists that she did not mean to defend socialism, noting that she "Was interested in it. To study something is not to endorse it." Wilentz called Kagan "one of the foremost legal minds in the country, she is still the witty, engaging, down-to-earth person I proudly remember from her undergraduate days."
As an undergraduate, Kagan also served as editorial chair of The Daily Princetonian. Along with eight other students (including Eliot Spitzer, who was student body president at the time), Kagan penned the Declaration of the Campaign for a Democratic University, which 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 editorials in The Daily Princetonian, Kagan was politically restrained in her dealings with fellow reporters. Steven Bernstein, Kagan's colleague on The Daily Princetonian "can not recall a time in which Kagan expressed her political views. Bernstein would describes Kagan's political stances as "sort of liberal, democratic, progressive tradition, and everything with lower case."
In 1980, Kagan received Princeton's Daniel M. Sachs Class of 1960 Graduating Scholarship, one of the highest general awards conferred by the university, which enabled her to study at Worcester College, Oxford. As part of her graduation requirement, Kagan wrote a thesis on "The Development and Erosion of the American Exclusionary Rule: A Study in Judicial Method." This thesis presented a critical look at the exclusionary rule and its evolution on the Supreme Court—in particular the Warren Court. With this as her thesis, Kagan tackled one of the most important and valued legal precepts in American law. She earned a Master of Philosophy in Politics at Oxford in 1983.
At 23, she entered Harvard Law School in 1983. Her adjustment to the atmosphere of Harvard was rocky, she received the worst grades of her entire law school career in her first semester. Kagan would go on to earn 17 As out 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 and Jacobson, a Wall Street firm in New York, where she worked in the litigation department. She received a Juris Doctor, magna cum laude, at Harvard Law School in 1986, where she was supervisory editor of the Harvard Law Review. Friend Jeffrey Toobin recalled 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."
Kagan was a law clerk for Judge Abner J. Mikva of the United States Court of Appeals for the District of Columbia Circuit in 1987. She emerged as one of Mikva's favorite clerks; he called Kagan "the pick of the litter." She also clerked for Justice Thurgood Marshall of the U.S. Supreme Court in 1988 ending the clerkship at the end of the year. Justice Marshall hired Kagan to help him put the spark back in his legal decisions because the court was undergoing a shift to the more conservative Rehnquist Court, which began in 1986. Marshall nicknamed the 5 foot 3 inch Kagan "Shorty". She later entered private practice as an associate at the Washington, D.C., law firm of Williams & Connolly. As a junior associate, Kagan drafted briefs and conducted discovery, which meant looking at evidence in preparation for trial. She also argued several cases before judges. During her short time at Williams & Connolly, she handled five lawsuits that involved First Amendment or media law issues and libel issues.
Kagan joined the faculty of the University of Chicago Law School as an assistant professor in 1991 and became a tenured professor of law in 1995. While at the University of Chicago, she 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.
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 1995–1996, when her mentor Judge Mikva served as White House Counsel. Kagan worked on controversial issues that plagued the Clinton White House such as the Whitewater controversy, White House travel office controversy, and Clinton v. Jones. From 1997–1999 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 cataloged in the Clinton Library. Kagan co-authored 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 had taken senior status in 1996. The Senate Judiciary Committee's Republican Chairman Orrin Hatch scheduled no hearing, effectively ending her nomination. When Clinton's term ended, her nomination to the D.C. Circuit Court lapsed, as did the nomination 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 Law School. However, she had given up her tenured position during her extended stint in the Clinton Administration. Thus, she needed to be rehired and the school chose not to do so; reportedly due to doubts about her commitment to academia. Kagan quickly found a position as a visiting professor at Harvard Law School. While at Harvard, she authored a law review article on United States administrative law, including the role of aiding the President of the United States in formulating and influencing federal administrative and regulatory law, which was honored as the year's top scholarly article by the American Bar Association's Section on Administrative Law and Regulatory Practice, and is being developed into a book to be published by Harvard University Press.
In 2001, she was named a full professor and in 2003 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 employing a consensus-building leadership style, which surmounted the school's previous ideological discord.
In her capacity as dean, Kagan inherited a $400 million capital campaign, "Setting the Standard", in 2003. It ended in 2008 with a record breaking $476 million 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 broke a logjam on conservative hires by bringing in scholars such as Jack Goldsmith, who had been serving in the Bush administration.
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-centric.
During her deanship, Kagan upheld a decades-old policy barring military recruiters from the Office of Career Services because she felt that the military's "Don't Ask, Don't Tell" policy discriminated against gays and lesbians. According to Campus Progress,
As dean, Kagan supported a lawsuit intended to overturn the Solomon Amendment so military recruiters might be banned from the grounds of schools like Harvard. When a federal appeals court ruled The Pentagon could not withhold funds, she banned the military from Harvard's campus once again. The case was challenged in the Supreme Court, which ruled the military could indeed require schools to allow recruiters if they wanted to receive federal money. Kagan, though she allowed the military back, simultaneously urged students to demonstrate against Don't Ask, Don't Tell.
In October 2003, Kagan sent an e-mail to students and faculty deploring that military recruiters had shown up on campus in violation of the school's anti-discrimination policy. It read, "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."
By early 2007, Kagan was a finalist for the presidency of Harvard University as a whole after Lawrence Summers' resignation the previous year, but lost out to Drew Gilpin Faust. She was reportedly disappointed not to be chosen, and supportive law school students threw her a party to express their appreciation for her leadership.
On January 5, 2009, President-elect Barack Obama announced he would nominate Kagan to be Solicitor General. Upon taking office, Kagan pledged to defend any statute as long as there is a colorable argument to be made, even though she might not personally agree with the policy she was obligated to defend. Before this appointment she had never argued a case before any court. At least two previous solicitors general, Robert Bork and Kenneth Starr, also had no previous Supreme Court appearances, though Starr was a judge on the United States Court of Appeals for the District of Columbia Circuit before becoming Solicitor General.
The two main issues senators had with Kagan during confirmation hearings were: 1. Would Kagan defend statutes that she personally opposed, and 2. if she was qualified to hold the position of solicitor general given her lack of courtroom experience. Kagan was confirmed by the U.S. Senate on March 19, 2009, by a vote of 61 to 31, becoming the first woman to hold the position. She made her first appearance before the Supreme Court on September 9, 2009, in Citizens United v. Federal Election Commission in which she asked the Supreme Court to uphold a 1990 precedent that the government could restrict corporations from using their treasuries to campaign for or against political candidates. The Supreme Court reversed laws on how much corporations could spend on elections, a major defeat for the Obama administration. During her 15 months as solicitor general, Kagan argued only six cases before the Supreme Court. She helped win four cases: Salazar v. Buono, United States v. Comstock, and Holder v. Humanitarian Law Project, Free Enterprise Fund v. Public Company Accounting Oversight Board. Another case she argued as solicitor general was Robertson v. United States ex rel. Watson which was decided by a per curiam opinion.
The First Amendment Center and the Cato Institute later expressed concern over arguments Kagan advanced as a part of her role as Solicitor General. For example, during her time as Solicitor General, Kagan prepared a brief defending a law later ruled unconstitutional that criminalized depictions of animal cruelty. During her confirmation hearing, she said that "there is no federal constitutional right to same-sex marriage." Also during her confirmation hearing, she was asked about the Defense of Marriage Act, pursuant to which states were not required to recognize same-sex marriages originating in other states. Kagan indicated that she would defend the act "if there is any reasonable basis to do so".
Prior to the election of President Barack Obama, Kagan was the subject of media speculation regarding her potential to be nominated to the Supreme Court of the United States if a Democratic president were elected in 2008. Obama had his first Supreme Court vacancy to fill in 2009 with the retirement announcement of Associate Justice David H. Souter. Senior adviser to Obama, David Axelrod, later recounted that during this search for a new justice, Antonin Scalia had told Axelrod 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, for possible appointment to the United States Supreme Court. On May 26, 2009, however, Obama announced that he was nominating Sonia Sotomayor to the post.
On April 9, 2010, Justice John Paul Stevens announced that he would retire at the start of the Court's summer 2010 recess, triggering new speculation about Kagan's potential nomination to the bench. In a Fresh Dialogues interview, Jeffrey Toobin, a Supreme Court analyst and Kagan's friend and law school classmate, speculated that Kagan would likely be President Obama's nominee, describing her as "very much an Obama type person, a moderate Democrat, a consensus builder." This possibility alarmed many liberals and progressives, who worried that "replacing Stevens with Kagan risks moving the Court to the right, perhaps substantially to the right."
While Kagan's name was mentioned as a possible replacement for Justice Stevens, the New York Times noted that she "has supported assertions of executive power." This view of vast executive power has caused some commentators to fear that she would reverse the majority in favor of protecting civil liberties on the Supreme Court were she to replace Stevens.
On May 10, 2010, Obama nominated Kagan to the Supreme Court to fill the vacancy left by Justice Stevens. The deans of over one-third of the country's law schools, sixty-nine people in total, endorsed Kagan's nomination in an open letter in early June. It lauded what it considered her coalition-building skills and "understanding of both doctrine and policy" as well as her written record of legal analysis.
The confirmation hearings began June 28. Kagan's testimony and her answers to the Senate Judiciary Committee's questions on July 20 were uneventful, containing no new revelations about her character or background. Arlen Specter of Pennsylvania cited an article Kagan had published in the Chicago Law Review in 1995, criticizing the evasiveness of Supreme Court nominees in their hearings. Kagan, noted Specter, was now practicing that very evasiveness. 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 on party lines, with five Republicans (Richard Lugar, Judd Gregg, Lindsey Graham, Susan Collins, and Olympia Snowe) supporting her and one Democrat (Ben Nelson) opposing. She was sworn in by Chief Justice John Roberts on Saturday August 7, in a private ceremony.
Kagan is the first justice appointed without any prior experience as a judge since William Rehnquist in 1972. She is the fourth female justice in the Court's history (and, for the first time, part of a Court with three female justices) and the eighth Jewish justice, making three of the nine current justices Jewish.
Tenure as Justice
Ideologically, Kagan is part of the Supreme Court's liberal wing: Kagan voted with the liberal block to King v. Burwell, 576 U.S. ___ (2015), finding subsidies and the individual mandate in Obamacare were Constitutional, and in Obergefell v. Hodges,576 U.S. ___ (2015), which legalized same sex marriage in all 50 states  In 2018, Slate observed Kagan had crossed ideological lines on multiple cases during the proceeding term, and considered Kagan to be part of a centrist block along with Justice Steven Breyer, Anthony Kennedy, and Chief Justice John Roberts. Still, FiveThirtyEight observed that Kagan voted with her more liberal peers, Justices Ruth Bader Ginsburg and Sotomayor, over 90% of the time. During that term, Kagan most commonly agreed with Justice Stephen Breyer, voting together in 93% of cases, and agreed with Justice Samuel Alito least often, voting together 58.82% of the time.
Having acted as Solicitor General before her nomination to the Supreme Court, Kagan recused herself from many cases to avoid conflicts of interests during her first year on the court. In her first term, she recused herself from 28 out of the 78 cases heard. More recently, Kagan recused from the immigrant-detention case Jennings v. Rodriguez in 2017 because she authorized a filing in the case when she was Solicitor General.
Kagan's first opinion as a justice, Ransom v. FIA Card Services, involved the issue of 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 precluded a debtor from taking an allowance for car related expenses where the debtor owned the car outright and did not make monthly loan or lease payments. Kagan 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, Kagan held that a patentee cannot receive royalties after the patent has expired. Kagan's opinion included several references to Spider-Man.
Kagan's first dissent came in the First Amendment case Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125 (2011). Writing for the liberal wing, Kagan took issue with the majority's creation of an exception to the Establishment Clause of the First Amendment. The majority held that Arizona tax payers could not challenge tax credits for those who donate to groups that provide scholarships to religious schools, drawing a distinction between the way the court treated tax credits and grants. Kagan deemed this distinction "arbitrary" as tax credits and grants could be used to achieve the same objectives. She viewed the majority's decision as creating a loophole for governments to fund religion.
In another Establishment Clause case, Town of Greece v. Galloway, 572 U.S. ___ (2014), Kagan wrote a dissent arguing that a town's prayer at a counsel meeting failed to treat all Americans the same no matter what religion they practice. Greece involved a town in New York inviting chaplains, for several years all Christian, to give a prayer before town counsel meetings. Unlike Marsh v. Chambers, 463 U.S. 783 (1983), where the Supreme Court had upheld a state legislature opening with a prayer, Kagan noted the board in Greece was forum for ordinary citizens. For Kagan, the use of prayer showed a preference for a particular religion and violated the First Amendment Rights of Americans interacting with their government.
Kagan wrote for the majority in Cooper v. Harris, 581 U.S. ___ (2017), striking down two of North Carolina's congressional districts. The Court held the districts were unconstitutional because they relied on race and did not pass the strict scrutiny standard of review. In a footnote, Kagan sets forth a new principle, that is congressional districts where race is the predominant factor may be found to be an unlawful racial gerrymander, even if they have another ultimate 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 strengthening of the number of black voters within District 1 resulted in weakening the strength of black voters elsewhere in the state. The Court also struck down District 12, although by a vote of 5-3, for similar shifts in the racial composition of the district. The dissent did not believe that those challenging the validity of the districts had proven that race, not politics, caused the change in District 12. Kagan quoted court precedent that race must only be a predominate consideration, and challengers did not need to prove politics was not a motivating factor.
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 only wrote 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 determine her own unique nuanced views or where she might lean in future cases. She wrote the fewest opinions for the terms from 2011 through 2014, tying with Kennedy for the 2011 and 2013 terms.
Kagan's writing style has been characterized as conversational, employing a range of rhetorical strategies to engage the reader. She has said that she approaches writing on the court like she used to approach the classroom, with numerous strategies of engagement between author and reader. Her opinions use examples and analogies to make them more understandable to a broad audience.
In 2013, a painting featuring Kagan, Sonia Sotomayor, Ruth Bader Ginsburg, and Sandra Day O'Connor was unveiled at the National Portrait Gallery in Washington, D.C. According to the Smithsonian at the time, the painting was on loan to the museum for three years.
- Barack Obama Supreme Court candidates
- Bill Clinton judicial appointment controversies
- Demographics of the Supreme Court of the United States
- List of law clerks of the Supreme Court of the United States
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The post Estrada hopes to fill is vacant because Republicans blocked action on two Clinton picks for the court: Washington attorney Allen Snyder and Harvard law professor Elena Kagan.
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Robert C. Clark
| Dean of Harvard Law School
| Solicitor General of the United States
John Paul Stevens
| Associate Justice of the Supreme Court of the United States
|Current U.S. order of precedence (ceremonial)|
as Associate Justice of the Supreme Court
| Order of Precedence of the United States
as Associate Justice of the Supreme Court
as Associate Justice of the Supreme Court