Elena Kagan | |
|---|---|
.jpg) Official portrait, 2013 | |
| Associate Justice of the Supreme Court of the United States | |
| Assumed office August 7, 2010 | |
| Nominated by | Barack Obama |
| Preceded by | John Paul Stevens |
| 45thSolicitor General of the United States | |
| In office March 19, 2009 – May 17, 2010 | |
| President | Barack Obama |
| Deputy | Neal Katyal[1] |
| Preceded by | Edwin Kneedler[2] (acting) |
| Succeeded by | Neal Katyal[1] (acting) |
| 11thDean of Harvard Law School | |
| In office July 1, 2003 – March 19, 2009 | |
| Preceded by | Robert Clark |
| Succeeded by | Martha Minow |
| Deputy Director of theDomestic Policy Council | |
| In office 1997–2000 | |
| President | Bill Clinton |
| Preceded by | Jeremy Ben-Ami[3] |
| Succeeded by | Eric Liu[4] |
| Personal details | |
| Born | (1960-04-28)April 28, 1960 (age 65) New York City, U.S. |
| Political party | Democratic[5] |
| Education | |
| Signature |  |
Elena Kagan delivers the opinion of the Court inIancu v. Brunetti Recorded June 24, 2019 | |
Elena Kagan (/ˈkeɪɡən/KAY-guhn; born April 28, 1960) is an American lawyer who serves as anassociate justice of theSupreme Court of the United States. She wasappointed in 2010 by PresidentBarack Obama and is the fourth woman to serve on the Court.
Kagan was born and raised in New York City. After graduating fromPrinceton University,Worcester College, Oxford, andHarvard Law School, she clerked for a federal Court of Appeals judge and for Supreme Court JusticeThurgood Marshall. She began her career as a professor at theUniversity of Chicago Law School, leaving to serve as AssociateWhite House Counsel, and later as a policy adviser underPresidentBill Clinton. After a nomination to theUnited States Court of Appeals for the D.C. Circuit, which expired without action, she became a professor atHarvard Law School and was later named its first femaledean.
In 2009, Kagan became the first femalesolicitor general of the United States.[6] The following year, President Obamanominated her to the Supreme Court to fill the vacancy arising from the impending retirement of JusticeJohn Paul Stevens. TheUnited States Senate confirmed her nomination by a vote of 63–37. As of 2022, she is the most recent justice appointed without any prior judicial experience. She favored a consensus-building approach until the conservative supermajority's decision to overturnRoe v. Wade. She has written themajority opinion in some landmark cases, such asCooper v. Harris,Chiafalo v. Washington, andKisor v. Wilkie, as well as several notable dissenting opinions, such as inRucho v. Common Cause,West Virginia v. EPA,Brnovich v. DNC,Janus v. AFSCME, andSeila Law v. CFPB.
Kagan was born on April 28, 1960, inManhattan, the second of three children[7][8] of Robert Kagan, an attorney who represented tenants trying to remain in their homes, and Gloria (Gittelman) Kagan, who taught atHunter College Elementary School.[9][10] Both her parents were the children ofRussian Jewish immigrants.[10] Kagan was raised inNew York City.[11] She has two brothers, Marc and Irving.[12]
Kagan and her family lived in a third-floor apartment atWest End Avenue and 75th Street,[13] and attendedLincoln Square Synagogue.[14] She was independent and strong-willed in her youth and, according to a former law partner of her father's, clashed with herOrthodoxrabbi,Shlomo Riskin, over aspects of herbat mitzvah.[13] "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.[15] Kagan and Riskin negotiated a solution. Riskin had never performed a ritual bat mitzvah before.[14] 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.[14] Kagan asked to read from theTorah on aSaturday morning as the boys did, but ultimately read from theBook of Ruth on aFriday night.[14] She now practicesConservative Judaism.[14]
Kagan's childhood friendMargaret Raymond recalled that she was a teenage smoker but not a partier.[13] On Saturday nights, Raymond and Kagan were "more apt to sit on the steps of theMetropolitan Museum of Art and talk."[13] Kagan also loved literature and rereadJane Austen'sPride and Prejudice every year.[13] In her 1977Hunter College High School yearbook, she is pictured in a judge's robe and holding agavel.[16] Next to the photo is a quotation from former Supreme Court JusticeFelix Frankfurter: "Government is itself an art, one of the subtlest of arts."[17]
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.[18] She was elected president of the student government and served on a student-faculty consultative committee.[19] Kagan then attendedPrinceton University, graduating in 1981 with aBachelor of Arts,summa cum laude, in history.[20] She was particularly drawn to American history and archival research.[21] She wrote a senior thesis under historianSean 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."[22] Wilentz says Kagan did not mean to defend socialism, noting that she "was interested in it. To study something is not to endorse it."[13]
As an undergraduate, Kagan also served as editorial chair ofThe Daily Princetonian.[20][23] Along with eight other students,[a] 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".[24] Despite the liberal tone ofThe Daily Princetonian's editorials, Kagan was politically restrained in her dealings with fellow reporters. HerDaily Princetonian colleague Steven Bernstein has said he "cannot recall a time in which Kagan expressed her political views".[25] He described Kagan's political stances as "sort of liberal, democratic, progressive tradition, and everything with lower case".[25]
In 1980, Kagan received Princeton's Daniel M. Sachs Class of 1960 Graduating Scholarship,[b] one of the highest general awards the university confers. This enabled her to study atWorcester 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 theexclusionary rule and its evolution on the Supreme Court—theWarren Court, in particular.[27] She earned aMaster of Philosophy in politics at Oxford in 1983.[28]
In 1983, at age 23, Kagan enteredHarvard Law School. Her adjustment to Harvard's atmosphere was challenging—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, and she became a supervisory editor of theHarvard Law Review.[29] She worked as a summer associate at theWall Street law firmFried, Frank, Harris, Shriver & Jacobson, where she worked in the litigation department.[30] She graduated in 1986 with aJuris Doctor,magna cum laude.[31][32] Her friendJeffrey 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."[33]
After law school, Kagan was alaw clerk for judgeAbner J. Mikva of theU.S. Court of Appeals for the District of Columbia Circuit from 1986 to 1987.[34] She became one of Mikva's favorite clerks; he called her "the pick of the litter".[35] From 1987 to 1988, Kagan clerked for JusticeThurgood Marshall of theU.S. Supreme Court.[34] 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 WilliamRehnquist became Chief Justice in 1986.[36] Marshall nicknamed the 5-foot-3-inch (1.60-metre) Kagan "Shorty".[13]
From 1989 to 1991, Kagan was in private practice at theWashington, D.C., law firmWilliams & Connolly.[37] As a junior associate, she drafted briefs and conducted discovery.[38] During her short time at the firm, she handled five lawsuits that involvedFirst Amendment or media law issues and libel issues.[39]
In 1991, Kagan became an assistant professor at theUniversity of Chicago Law School.[40] While there she first metBarack Obama, a guest lecturer at the school.[41][42] While on the faculty there, Kagan published a law review article on the regulation of First Amendmenthate speech in the wake of the Supreme Court's ruling inR.A.V. v. City of St. Paul;[43] an article discussing the significance of governmental motive in regulating speech;[44] and a review of a book byStephen L. Carter discussing the judicial confirmation process.[45] 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 historicdraft-card burning andflag burning cases in light of free speech arguments.[46]
In 1993, SenatorJoe Biden appointed Kagan as a special counsel for theSenate Judiciary Committee. During this time, she worked onRuth Bader Ginsburg's Supreme Court confirmation hearings.[47]
Kagan became a tenured professor of law in 1995.[40] 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".[13]
Kagan served as Associate White House Counsel forBill Clinton from 1995 to 1996, when Mikva served as White House Counsel. She worked on such issues affecting the Clinton administration as theWhitewater controversy, theWhite House travel office controversy, andClinton v. Jones.[48] 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 theClinton Library.[49] Kagan coauthored a 1997 memo urging Clinton to support a ban onlate-term abortions: "We recommend that you endorse theDaschle amendment in order to sustain your credibility on HR 1122 and prevent Congress from overriding your veto."[50]
On June 17, 1999, Clinton nominated Kagan to theU.S. Court of Appeals for the District of Columbia Circuit, to replaceJames L. Buckley, who tooksenior status in 1996. TheSenate Judiciary Committee'sRepublican Chairman,Orrin Hatch, scheduled no hearing, effectively ending her nomination. When the Senate term ended, her nomination lapsed, as did that of fellow Clinton nomineeAllen Snyder.[51][52]
After her service in theWhite 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.[53] Kagan quickly found a position as a visiting professor at Harvard Law School. While there, she authored a law review article onUnited 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 theAmerican Bar Association's Section on Administrative Law and Regulatory Practice.[54]
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 PresidentLawrence Summers.[55] She succeededRobert 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.[56][57][58]
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.[59] Kagan made a number of prominent new hires, increasing the size of the faculty considerably. Her coups included hiring legal scholarCass Sunstein away from theUniversity of Chicago[60] andLawrence Lessig away fromStanford.[61] She also made an effort to hire conservative scholars, such as formerBush administration officialJack Goldsmith, for the traditionally liberal-leaning faculty.[57][62]
According toKevin Washburn, then dean of theUniversity 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.[58]
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 toCampus Progress,
As dean, Kagan supported a lawsuit intended to overturn theSolomon Amendment so military recruiters might be banned from the grounds of schools like Harvard. When a federal appeals court ruledThe 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.[63][64]
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".[65] She also wrote that it was "a profound wrong—a moral injustice of the first order".[65]
From 2005 to 2008, Kagan was a member of the Research Advisory Council of theGoldman Sachs Global Markets Institute. She received a $10,000stipend for her service.[66]
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 toDrew Gilpin Faust instead. Kagan was reportedly disappointed, and law school students threw her a party to express their appreciation for her leadership.[67]
On January 5, 2009,President-elect Barack Obama announced he would nominate Kagan to beSolicitor General.[68][69] She was vetted for the position ofDeputy Attorney General before her selection as Solicitor General.[70] At the time of her nomination, Kagan had never argued a case before any court.[71] At least two previous solicitors general,Robert Bork andKenneth Starr, had no previous Supreme Court appearances.[72]
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.[73] Kagan testified that she would defend laws, such as theDefense 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".[74] The Senate confirmed her on March 19, 2009, by a vote of 61 to 31.[75] She was the first woman to hold the position.[76] 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.[73] 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.[76][47] Thus the arguments she made as Solicitor General were not necessarily indicative of her personal beliefs.[76]
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 ofCitizens United v. Federal Election Commission,558 U.S. 310 (2010).[77] 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.[77][78][79] In a 5–4 decision, the Court overturned precedent and allowed corporations to spend freely in elections, a major defeat for the Obama administration.[80]
During her 15 months as Solicitor General, Kagan argued six cases before the Supreme Court.[81]The Washington Post described her style during argument as "confident" and "conversational".[76] 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), andFree Enterprise Fund v. Public Company Accounting Oversight Board,561 U.S. 477 (2010).[82][c]
Before Obama's election, Kagan was the subject of media speculation as a potential Supreme Court nominee if aDemocratic president were elected in 2008.[84] Obama had his first Supreme Court vacancy to fill in 2009 when Associate JusticeDavid Souter announced his upcoming retirement.[85] Senior Obama adviserDavid 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.[86] On May 13, 2009, theAssociated Press reported that Obama was considering Kagan, among others.[87] On May 26, 2009, Obama announced that he had chosenSonia Sotomayor.[88]
On April 9, 2010, JusticeJohn 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.[89] In aFresh Dialogues interview,Jeffrey Toobin, a Supreme Court analyst and Kagan's friend and law school classmate,[90] speculated that she would be Obama's nominee, describing her as "very much an Obama-type person, a moderate Democrat, a consensus builder".[91] 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".[92]
On May 10, 2010, Obama nominated Kagan to the Supreme Court.[93] The deans of over one-third of the country's law schools, 69 people in total, endorsed the nomination in anopen 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.[94]
Kagan's confirmation hearings before theSenate Judiciary Committee began on June 28.[95] As they began, Kagan was expected to be confirmed, with SenatorJohn Cornyn calling her "justice-to-be".[96] 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.[97] Like many prior nominees, includingChief JusticeJohn Roberts, she declined to answer whether she thought particular cases were correctly decided or how she would vote on particular issues.[97][98] SenatorsJon Kyl andArlen Specter[d] criticized her evasiveness. Specter said it obscured the way justices actually ruled once on the Court.[98] He noted that Kagan published an article in theUniversity of Chicago Law Review in 1995 in which she criticized the evasiveness she came to practice.[100][96] Republican senators criticized Kagan's background as more political than judicial; she responded by promising to be impartial and fair.[95] 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.[101][102] The voting was largely along party lines, with five Republicans (Richard Lugar,Judd Gregg,Lindsey Graham, Susan Collins, andOlympia Snowe) supporting her and one Democrat (Ben Nelson) opposing.[103]
Kagan's swearing-in ceremony took place on August 7, 2010, at the White House. Chief JusticeJohn Roberts administered the prescribed constitutional and judicial oaths of office, at which time she became the112th justice (100th associate justice) of the Supreme Court.[104][105] She is the first person appointed to the Court without any prior experience as a judge sinceWilliam Rehnquist andLewis F. Powell Jr., who both became members in 1972.[106][107][108] She is the fourth female justice in the court's history,[e] and the eighthJewish justice.[109][f]
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.[111] She recused herself again, due to similar conflicts of interests, in the 2017 immigrant-detention caseJennings v. Rodriguez, as she had authorized a filing in the case as solicitor general.[112]
Kagan's first opinion as a justice,Ransom v. FIA Card Services, was in a statutory interpretation case. The issue was what income a debtor could shield from creditors in bankruptcy.[113] In an 8–1 decision, Kagan's opinion for the majority held that theChapter 13 Bankruptcy statute prevents a debtor from taking an allowance for car-related expenses where 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 to them.[114][115]
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Kagan's first dissent came in a First Amendment case,Arizona Christian School Tuition Organization v. Winn,563 U.S. 125 (2011).[116] Writing for the Court's liberal wing, she objected to the majority's creating an exception to theEstablishment Clause of the First Amendment.[116] 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.[116][117] 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.[116] 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.[118]Greece involved a town in New York inviting chaplains, for several years all Christian, to give a prayer before town council meetings.[119] UnlikeMarsh v. Chambers,463 U.S. 783 (1983), in which the Supreme Court allowed a state legislature to open with a prayer, Kagan noted the board inGreece was a forum for ordinary citizens.[120] She argued the use of prayer showed a preference for a particular religion and thus violated Americans' First Amendment rights.[120]
Kagan dissented inLuis 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'sSixth Amendmentright to counsel when those assets were needed to retain counsel of the defendant's choosing.[121] The defendant, Sila Luis, had been charged withMedicare 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.[122] 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.[123] The majority sought to distinguish their holding inLuis fromMonsanto based upon the nature of the funds being frozen; Luis's funds were not directly linked to her crime and Monsanto's funds were.[121][123] Kennedy dissented inLuis 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 thatMonsanto might have been wrongly decided.[123] 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.[121][123][122] 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.[123]
Kagan wrote for the majority inCooper v. Harris,581 U.S. ___ (2017), striking down the configuration of two ofNorth Carolina's congressional districts.[124] The Court held the districts' boundaries were unconstitutional because they relied excessively on race and did not pass thestrict scrutiny standard of review.[125][126][127] 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 racialgerrymander even if they have another goal, such as sorting voters by political affiliation.[126] Applying this principle to the facts of the case, the Court unanimously struck downNorth 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.[125] The increase of black voters in District 1 resulted in a decrease of black voters in other districts.[127] The Court also struck downDistrict 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.[125] 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.[125][126]
In June 2019, Kagan dissented inRucho 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."[128] Ginsburg, Breyer, and Sotomayor joined her dissent.
InBrnovich 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."[129]
Joined by Justices Breyer and Sotomayor, Kagan dissented inWest Virginia v. EPA, which struck down the proposedClean 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."[130][131]
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.[132] She wrote the fewest opinions for the terms from 2011 through 2014, tying with Kennedy in 2011 and 2013.[133]
Kagan's writing has been characterized as conversational, employing a range of rhetorical styles.[134] She has said that she approaches writing on the Court like she used to approach the classroom, with numerous strategies to engage the reader.[135] Her opinions use examples and analogies to make them more accessible to a broad audience.[132][136] In one such opinion, Kagan wrote for the majority inKimble v. Marvel Entertainment, LLC, a 6–3 decision in favor ofMarvel, holding that a patentee cannot receive royalties after the patent expires.[137] In doing so, she included several references toSpider-Man.[138][139]
Kagan is generally regarded as a centrist. After her nomination to the Court, White House officials, worried she would be seen as too centrist by liberals, called her a "pragmatic progressive". On the Court, she favored a consensus-building approach until the conservative supermajority's decision to overturnRoe v. Wade. AfterDobbs v. Jackson Women's Health Organization she became publicly critical of the Court's rightward shift.[140][141][142][143] She voted with the liberal bloc inKing v. Burwell,576 U.S. 988 (2015), finding thatObamacare's subsidies and individual mandate are constitutional, and inObergefell v. Hodges,576 U.S. 644 (2015), which prohibits states from banningsame-sex marriage.[144] In 2018,Slate observed that Kagan had crossed ideological lines on multiple cases during the preceding term, and considered her part of a centrist bloc, along with Roberts,Stephen Breyer, andAnthony Kennedy.[145] Still,FiveThirtyEight observed that Kagan voted with her more liberal peers, Ginsburg and Sotomayor, over 90% of the time.[146] Also during the 2017–18 term, Kagan most commonly agreed with Breyer; they voted together in 93% of cases. She agreed least often withSamuel Alito, in 58.82% of cases.[147]
Kagan was thecircuit justice, the justice responsible for handling emergency requests, for theSixth andSeventh Circuits.[148] AfterBrett Kavanaugh's confirmation, she was assigned to theNinth Circuit, the largest circuit court by area. It includesAlaska,Arizona,California,Guam,Hawaii,Idaho,Oregon,Montana,Nevada, theNorthern Mariana Islands, andWashington state.[149][148]
Like other justices, Kagan makes public appearances when she is not hearing cases.[150] In her first four years on the Court, she made at least 20 public appearances.[151] Kagan tends to choose speaking engagements that allow her to speak to students.[150]
Time magazine named Kagan one of itsTime 100 most influential people for 2013. Former Supreme Court JusticeSandra Day O'Connor wrote the article on Kagan, calling her "an incisive legal thinker" and "excellent communicator".[152] 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 theNational Portrait Gallery in Washington, D.C.[153] In 2018, Kagan received the Marshall-Wythe Medallion fromWilliam & Mary Law School,[154] and an honorary degree ofDoctor of Humane Letters fromHunter College.[155]
Kagan has never married. During her confirmation, a photo of her playingsoftball, which is sometimes characterized in popular culture as unfeminine, led to unsubstantiated claims that Kagan was alesbian.[156] Her friends have criticized the rumors. Kagan's law school roommate Sarah Walzer said, "I've known her for most of her adult life and I know she'sstraight."[157]
Kagan's Harvard colleagues and friends have characterized her as a good conversationalist, warm, with a good sense of humor.[158] Before joining the Supreme Court, she was known to play poker and smoke cigars.[158][159]
Early in her tenure as a justice, Kagan began socializing with several of her new colleagues.[160] She attended the opera withRuth Bader Ginsburg, had dinner withSonia Sotomayor, attended legal events withAnthony Kennedy andClarence Thomas, and went hunting withAntonin Scalia.[160] The hunting trips stemmed from a promise Kagan made to U.S. senatorJim Risch ofIdaho during a meeting before her confirmation; Risch expressed concern that, as aNew York City native, Kagan did not understand the importance of hunting to his constituents. Kagan initially offered to go hunting with Risch before promising instead to go hunting with Scalia if confirmed. According to Kagan, Scalia laughed when she told him of the promise and took her to his hunting club for the first of several hunting trips.[161] Kagan is known to spend time with longtime friends from law school and from her stint in the Clinton administration rather than attending Washington, D.C. social events she is invited to as a justice.[160]
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.
Harvard Law School's "Setting the Standard" campaign has raised $476,475,707, making it the most successful fund-raising drive in the history of legal education.
| Academic offices | ||
|---|---|---|
| Preceded by | Dean of Harvard Law School 2003–2009 | Succeeded by |
| Legal offices | ||
| Preceded by | Solicitor General of the United States 2009–2010 | Succeeded by |
| Preceded by | Associate Justice of the Supreme Court of the United States 2010–present | Incumbent |
| U.S. order of precedence (ceremonial) | ||
| Preceded byas Associate Justice of the Supreme Court | Order of precedence of the United States as Associate Justice of the Supreme Court | Succeeded byas Associate Justice of the Supreme Court |
