Elena Kagan

After law school, Kagan was a law clerk for judge Abner J. Mikva of the U.S. Court of Appeals for the District of Columbia Circuit from 1987 to 1988. She became one of Mikva's favorite clerks; he called her "the pick of the litter".[32] From 1988 to 1989, 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.[33] Marshall nicknamed the 5-foot-3-inch (1.60-metre) Kagan "Shorty".[11]

From 1989 to 1991, Kagan was in private practice at the Washington, D.C. law firm Williams & Connolly.[34] As a junior associate, she drafted briefs and conducted discovery.[35] During her short time at the firm, she handled five lawsuits that involved First Amendment or media law issues and libel issues.[36]

In 1991, Kagan became an assistant professor at the University of Chicago Law School.[37] While there she first met Barack Obama, a guest lecturer at the school.[38][39] 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;[40] an article discussing the significance of governmental motive in regulating speech;[41] and a review of a book by Stephen L. Carter discussing the judicial confirmation process.[42] 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.[43]

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.[44]

Kagan became a tenured professor of law in 1995.[37] 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".[11]

Kagan in the Oval Office with President Bill Clinton in 1997 during her tenure as Deputy Assistant to the President for Domestic Policy

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 issues affecting the Clinton administration as the Whitewater controversy, the White House travel office controversy, and Clinton v. Jones.[45] 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.[46] 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."[47]

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.[48][49]

Kagan as Harvard Law School dean in 2008

Kagan's 2009 official portrait as Harvard Law School dean

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.[50] 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.[51]

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.[52] 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.[53][54][55]

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.[56] 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[57] and Lawrence Lessig away from Stanford.[58] She also made an effort to hire conservative scholars, such as former Bush administration official Jack Goldsmith, for the traditionally liberal-leaning faculty.[54][59]

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.[55]

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,

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.[60][61]

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".[62] She also wrote that it was "a profound wrong—a moral injustice of the first order".[62]

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.[63]

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.[64]

On January 5, 2009, President-elect Barack Obama announced he would nominate Kagan to be Solicitor General.[65][66] She was vetted for the position of Deputy Attorney General before her selection as Solicitor General.[67] At the time of her nomination, Kagan had never argued a case before any court.[68] At least two previous solicitors general, Robert Bork and Kenneth Starr, had no previous Supreme Court appearances.[69]

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.[70] 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".[71] The Senate confirmed her on March 19, 2009, by a vote of 61 to 31.[72] She was the first woman to hold the position.[73] 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.[70] 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.[73][44] Thus the arguments she made as Solicitor General were not necessarily indicative of her personal beliefs.[73]

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, 558 U.S. 310 (2010).[74] 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.[74][75][76] In a 5–4 decision, the Court overturned precedent and allowed corporations to spend freely in elections, a major defeat for the Obama administration.[77]

During her 15 months as Solicitor General, Kagan argued six cases before the Supreme Court.[78] The Washington Post described her style during argument as "confident" and "conversational".[73] She helped win four cases: Salazar v. Buono, 559 U.S. 700 (2010), United States v. Comstock, 560 U.S. 126 (2010), Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), and Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010).[79][lower-alpha 3]

Kagan meets with then President Obama in the Oval Office, April 2010, a month before nominating her to the U.S. Supreme Court

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.[81] Obama had his first Supreme Court vacancy to fill in 2009 when Associate Justice David H. Souter announced his upcoming retirement.[82] 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.[83] On May 13, 2009, the Associated Press reported that Obama was considering Kagan, among others.[84] On May 26, 2009, Obama announced that he had chosen Sonia Sotomayor.[85]

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.[86] In a Fresh Dialogues interview, Jeffrey Toobin, a Supreme Court analyst and Kagan's friend and law school classmate,[87] speculated that she would be Obama's nominee, describing her as "very much an Obama-type person, a moderate Democrat, a consensus builder".[88] 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".[89]

On May 10, 2010, Obama nominated Kagan to the Supreme Court.[90] 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.[91]

Kagan, Obama, and Chief Justice John Roberts before her investiture ceremony, October 1, 2010

Kagan (right), then a Supreme Court nominee, meets with U.S. Senator Jeanne Shaheen

Kagan's confirmation hearings before the Senate Judiciary Committee began on June 28.[92] As they began, Kagan was expected to be confirmed, with Senator John Cornyn calling her "justice-to-be".[93] During the hearings, she demonstrated a deep knowledge of Supreme Court cases, expounding upon cases senators mentioned in their questions to her 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.[94] 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.[94][95] Senators Jon Kyl and Arlen Specter[lower-alpha 4] criticized her evasiveness. Specter said it obscured the way justices actually ruled once on the Court.[95] He noted that Kagan published an article in the University of Chicago Law Review in 1995 in which she criticized the evasiveness she came to practice.[97][93] Republican senators criticized Kagan's background as more political than judicial; she responded by promising to be impartial and fair.[92] 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.[98] The voting was largely along party lines, with five Republicans (Richard Lugar, Judd Gregg, Lindsey Graham, Susan Collins, and Olympia Snowe) supporting her and one Democrat (Ben Nelson) opposing.[99]

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 (100th associate justice) of the Supreme Court.[100][101] 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.[102][103][104] She is the fourth female justice in the court's history,[lower-alpha 5] and the eighth Jewish justice.[105][lower-alpha 6]

Ideologically, Kagan is part of the Supreme Court's liberal wing:[107][108][109] she voted with the liberal bloc in King v. Burwell, 576 U.S. 988 (2015), finding that Obamacare's subsidies and individual mandate are constitutional, and in Obergefell v. Hodges, 576 U.S. 644 (2015), which prohibits states from outlawing same-sex marriage.[110] In 2018, Slate observed that Kagan had crossed ideological lines on multiple cases during the preceding term, and considered her to be part of a centrist bloc along with Justices Roberts, Stephen Breyer, and Anthony Kennedy.[111] Still, FiveThirtyEight observed that Kagan voted with her more liberal peers, Ginsburg and Sotomayor, over 90% of the time.[112] Also during the 2017–18 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.[113]

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.[114] In 2017, she recused herself from the immigrant-detention case Jennings v. Rodriguez because she authorized a filing in the case when she was solicitor general.[115]

Kagan was the circuit justice, the justice responsible for handling emergency requests, for the Sixth and Seventh Circuits.[116] After Brett Kavanaugh's confirmation, she was assigned to the Ninth Circuit, the largest US circuit court by area. It includes Alaska, Arizona, California, Guam, Hawaii, Idaho, Oregon, Montana, Nevada, the Northern Mariana Islands, and Washington state.[117][116]

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.[118] In an 8–1 decision, she 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.[119][120] 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.[121] Her opinion included several references to Spider-Man.[122]

John Roberts, Stephen Breyer, Kagan, and Neil Gorsuch at President Donald Trump's 2018 State of the Union Address

Kagan's first dissent came in the First Amendment case Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125 (2011).[123] Writing for the liberal wing, she took issue with the majority's creation of an exception to the Establishment Clause of the First Amendment.[123] 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.[123][124] 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.[123] In another Establishment Clause case, Town of Greece v. Galloway, 572 U.S. 565 (2014), Kagan wrote a dissent arguing that a prayer at a town council meeting failed to treat all Americans the same regardless of religion.[125] Greece involved a town in New York inviting chaplains, for several years all Christian, to give a prayer before town council meetings.[126] Unlike Marsh v. Chambers, 463 U.S. 783 (1983), 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.[127] She argued the use of prayer showed a preference for a particular religion and thus violated Americans' First Amendment rights.[127]

Kagan dissented in Luis v. United States, 578 U.S. ___ (2016), where the five-justice majority held that the pretrial 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.[128] 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.[129] An earlier Supreme Court case, United States v. Monsanto, 491 U.S. 600 (1989), held that a court could freeze a defendant's assets pretrial, including funds obtained through the alleged sale of drugs, even when those assets were being used to hire an attorney.[130] 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 and Monsanto's funds were.[128][130] 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.[130] She 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.[128][130][129] Her vote thus rested on procedural grounds as 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, by merely showing probable cause that the property will be subject to forfeiture.[130]

Kagan wrote for the majority in Cooper v. Harris, 581 U.S. ___ (2017), striking down the configuration of two of North Carolina's congressional districts.[131] The Court held the districts' boundaries were unconstitutional because they relied excessively on race and did not pass the strict scrutiny standard of review.[132][133][134] 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.[133] 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.[132] The increase of black voters in District 1 resulted in a decrease of black voters in other districts.[134] 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.[132] Kagan quoted Court precedent that race must only be a predominant consideration, and that challengers did not need to prove politics was not a motivating factor.[132][133]

In June 2019, Kagan dissented in Rucho v. Common Cause, a 5-4 ruling that held that partisan gerrymandering is a non-justiciable claim. Kagan wrote, "Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent."[135] Ginsburg, Breyer, and Sotomayor joined her dissent.

In Brnovich v. DNC, Kagan wrote the dissenting opinion and was joined by Breyer and Sotomayor. She would have struck down the Arizona voting laws that throw out votes that are cast out-of-precinct and ban ballot harvesting. Kagan wrote that African-American, Latino, and Native American voters are disproportionately likely to have their votes thrown out for being out-of-precinct (compared to White voters). She concluded, "The law that confronted one of this country’s most enduring wrongs; pledged to give every American, of every race, an equal chance to participate in our democracy; and now stands as the crucial tool to achieve that goal. That law, of all laws, deserves the sweep and power Congress gave it. That law, of all laws, should not be diminished by this Court."[136]

Joined by Justices Breyer and Sotomayor, Kagan dissented in West Virginia v. EPA, which struck down the proposed Clean Power Plan. She wrote, "It is EPA (that's the Environmental Protection Agency, in case the majority forgot) acting to address the greatest environmental challenge of our time. So too, there is nothing special about the Plan's 'who': fossil-fuel-fired power plants. In Utility Air, we thought EPA's regulation of churches and schools highly unusual. But fossil-fuel-fired plants? Those plants pollute—a lot—and so they have long lived under the watchful eye of EPA. That was true even before EPA began regulating carbon dioxide." Kagan concluded, "The subject matter of the regulation here makes the Court's intervention all the more troubling. Whatever else this Court may know about, it does not have a clue about how to address climate change. And let's say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants' carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decision-maker on climate policy. I cannot think of many things more frightening. Respectfully, I dissent."[137][138]

In her first term on the Court, Kagan did not write any separate opinions, and wrote the fewest opinions of any justice. 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.[139] She wrote the fewest opinions for the terms from 2011 through 2014, tying with Kennedy in 2011 and 2013.[140]

Kagan's writing has been characterized as conversational, employing a range of rhetorical styles.[141] She has said that she approaches writing on the Court like she used to approach the classroom, with numerous strategies to engage the reader.[142] Her opinions use examples and analogies to make them more accessible to a broad audience.[139][143]

The four current female U.S. Supreme Court justices: Sandra Day O'Connor, Sonia Sotomayor, Ruth Bader Ginsburg, and Kagan, October 2010. (O'Connor is not wearing a robe because she had retired before the picture was taken).

Like other justices, Kagan makes public appearances when she is not hearing cases.[144] In her first four years on the Court, she made at least 20 public appearances.[145] Kagan tends to choose speaking engagements that allow her to speak to students.[144]

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".[146] 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.[147] In 2018, Kagan received the Marshall-Wythe Medallion from William & Mary Law School,[148] and an honorary degree of Doctor of Humane Letters from Hunter College.[149]