Elena Kagan

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Elena Kagan
Elena Kagan Official SCOTUS Portrait (2013).jpg
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
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)
11th Dean of Harvard Law School
In office
July 1, 2003 March 19, 2009
Preceded by Robert Clark
Succeeded by Martha Minow [3]
Deputy Assistant to the President for Domestic Policy
In office
1997–2000
President Bill Clinton
Preceded by Jeremy Ben-Ami [4]
Succeeded by Eric Liu [5]
Personal details
Born (1960-04-28) April 28, 1960 (age 59)
New York City, New York, U.S.
Education Princeton University (BA)
Worcester College, Oxford (MPhil)
Harvard University (JD)

Elena Kagan ( /ˈkɡən/ ; born April 28, 1960) [6] is an Associate Justice of the Supreme Court of the United States. She was nominated by President Barack Obama in May 2010, and confirmed by the Senate in August of the same year. She is the fourth woman to serve as a Justice of the Supreme Court.

Associate Justice of the Supreme Court of the United States member of the U.S. Supreme Court other than the Chief Justice

Associate Justice of the Supreme Court of the United States is the title of all members of the Supreme Court of the United States other than the chief justice of the United States. The number of associate justices is eight, as set by the Judiciary Act of 1869.

Supreme Court of the United States Highest court in the United States

The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. Established pursuant to Article III of the U.S. Constitution in 1789, it has original jurisdiction over a narrow range of cases, including suits between two or more states and those involving ambassadors. It also has ultimate appellate jurisdiction over all federal court and state court cases that involve a point of federal constitutional or statutory law. The Court has the power of judicial review, the ability to invalidate a statute for violating a provision of the Constitution. Executive acts can be struck down by the Court for violating either the Constitution or federal law. However, it may act only within the context of a case in an area of law over which it has jurisdiction. The court may decide cases having political overtones, but it has ruled that it does not have power to decide non-justiciable political questions.

Barack Obama 44th president of the United States

Barack Hussein Obama II is an American attorney and politician who served as the 44th president of the United States from 2009 to 2017. A member of the Democratic Party, he was the first African American to be elected to the presidency. He previously served as a U.S. senator from Illinois from 2005 to 2008 and an Illinois state senator from 1997 to 2004.

Contents

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.

New York City Largest city in the United States

The City of New York, usually called either New York City (NYC) or simply New York (NY), is the most populous city in the United States. With an estimated 2018 population of 8,398,748 distributed over a land area of about 302.6 square miles (784 km2), New York is also the most densely populated major city in the United States. Located at the southern tip of the state of New York, the city is the center of the New York metropolitan area, the largest metropolitan area in the world by urban landmass and one of the world's most populous megacities, with an estimated 19,979,477 people in its 2018 Metropolitan Statistical Area and 22,679,948 residents in its Combined Statistical Area. A global power city, New York City has been described as the cultural, financial, and media capital of the world, and exerts a significant impact upon commerce, entertainment, research, technology, education, politics, tourism, art, fashion, and sports. The city's fast pace has inspired the term New York minute. Home to the headquarters of the United Nations, New York is an important center for international diplomacy.

Princeton University University in Princeton, New Jersey

Princeton University is a private Ivy League research university in Princeton, New Jersey. Founded in 1746 in Elizabeth as the College of New Jersey, Princeton is the fourth-oldest institution of higher education in the United States and one of the nine colonial colleges chartered before the American Revolution. The institution moved to Newark in 1747, then to the current site nine years later, and renamed itself Princeton University in 1896.

Worcester College, Oxford college of the University of Oxford

Worcester College is one of the constituent colleges of the University of Oxford in England. The college was founded in 1714 by the benefaction of Sir Thomas Cookes, a Worcestershire baronet, with the college gaining its name from the county of Worcestershire. Its predecessor, Gloucester College, had been an institution of learning on the same site since the late 13th century until the Dissolution of the Monasteries in 1539. Founded as a men's college, Worcester has been coeducational since 1979.

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.

Solicitor General of the United States

The Solicitor General of the United States is the fourth-highest-ranking official in the United States Department of Justice. The current Solicitor General, Noel Francisco, took office on September 19, 2017.

Elena Kagan Supreme Court nomination

On May 10, 2010, President Barack Obama announced his selection of Elena Kagan for Associate Justice of the Supreme Court of the United States, to replace retiring Justice John Paul Stevens. Kagan's nomination was confirmed by a 63–37 vote of the United States Senate on August 5, 2010. When nominated, Kagan was Solicitor General of the United States, a position to which Obama had appointed her to in March 2009.

John Paul Stevens American Supreme Court judge

John Paul Stevens was an American lawyer and jurist who served as an associate justice of the United States Supreme Court from 1975 until his voluntary retirement in 2010. At the time of his retirement, he was the second-oldest-serving justice in the history of the court. The oldest-serving justice was Oliver Wendell Holmes Jr., who was 90 years and 309 days at the time of his retirement in 1932. and the third-longest-serving justice. His long tenure saw him write for the court on most issues of American law, including civil liberties, death penalty, government action and intellectual property. In cases involving presidents of the United States, he wrote for the court that they were to be held accountable under American law. A registered Republican when appointed, Stevens was considered to have been on the liberal side of the court at the time of his retirement. Stevens was the longest-lived Supreme Court justice in United States history.

Early life

Kagan was born in Manhattan, the second of three children [7] of Robert Kagan, an attorney who represented tenants trying to remain in their homes, and Gloria (Gittelman) Kagan, who taught at Hunter College Elementary School. [8] [9] Both her parents were the children of Russian immigrants. [9] Kagan has two brothers, Marc and Irving. [10]

Manhattan Borough in New York City and county in New York, United States

Manhattan, often referred to locally as the City, is the most densely populated of the five boroughs of New York City and its economic and administrative center, cultural identifier, and historical birthplace. The borough is coextensive with New York County, one of the original counties of the U.S. state of New York. The borough consists mostly of Manhattan Island, bounded by the Hudson, East, and Harlem rivers; several small adjacent islands; and Marble Hill, a small neighborhood now on the U.S. mainland, physically connected to the Bronx and separated from the rest of Manhattan by the Harlem River. Manhattan Island is divided into three informally bounded components, each aligned with the borough's long axis: Lower, Midtown, and Upper Manhattan.

Hunter College Elementary School is a New York City elementary school for intellectually gifted students, located on Manhattan's Upper East Side. It is administered by Hunter College, a senior college of the City University of New York or CUNY.

Russia transcontinental country in Eastern Europe and Northern Asia

Russia, or the Russian Federation, is a transcontinental country in Eastern Europe and North Asia. At 17,125,200 square kilometres (6,612,100 sq mi), Russia is by a considerable margin the largest country in the world by area, covering more than one-eighth of the Earth's inhabited land area, and the ninth most populous, with about 146.80 million people as of 2019, including Crimea. About 77% of the population live in the western, European part of the country. Russia's capital, Moscow, is one of the largest cities in the world and the second largest city in Europe; other major cities include Saint Petersburg, Novosibirsk, Yekaterinburg and Nizhny Novgorod. Extending across the entirety of Northern Asia and much of Eastern Europe, Russia spans eleven time zones and incorporates a wide range of environments and landforms. From northwest to southeast, Russia shares land borders with Norway, Finland, Estonia, Latvia, Lithuania and Poland, Belarus, Ukraine, Georgia, Azerbaijan, Kazakhstan, China, Mongolia and North Korea. It shares maritime borders with Japan by the Sea of Okhotsk and the U.S. state of Alaska across the Bering Strait. However, Russia recognises two more countries that border it, Abkhazia and South Ossetia, both of which are internationally recognized as parts of Georgia.

Kagan and her family lived in a third-floor apartment at West End Avenue and 75th Street [11] and attended Lincoln Square Synagogue. [12] 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. [11] "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. [13] Kagan and Riskin negotiated a solution. Riskin had never performed a ritual bat mitzvah before. [12] 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. [12] 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. [12] She now practices Conservative Judaism. [12]

Lincoln Square Synagogue synagogue in New York City

The Lincoln Square Synagogue is a Modern Orthodox synagogue located at 180 Amsterdam Avenue between West 68th and 69th Streets in the Lincoln Square neighborhood of Manhattan, New York City. Founded in 1964, the physical location of the congregation has changed several times. The most recent move took place in January 2013. The new building is the largest synagogue to be built in New York City in over 50 years. The current senior Rabbi is Rabbi Shaul Robinson.

Orthodox Judaism Traditionalist branches of Judaism

Orthodox Judaism is a collective term for the traditionalist branches of contemporary Judaism. Theologically, it is chiefly defined by regarding the Torah, both Written and Oral, as literally revealed by God on Mount Sinai and faithfully transmitted ever since. Orthodox Judaism therefore advocates a strict observance of Jewish Law, or Halakha, which is to be interpreted and determined only according to traditional methods and in adherence to the continuum of received precedent through the ages. It regards the entire halakhic system as ultimately grounded in immutable revelation, essentially beyond external and historical influence. More than any theoretical issue, obeying the dietary, purity, ethical, and other laws of Halakha is the hallmark of Orthodoxy. Other key doctrines include belief in a future resurrection of the dead, divine reward and punishment for the righteous and the sinners, the Election of Israel, and an eventual restoration of the Temple in Jerusalem under the Messiah.

In Judaism, a rabbi is a teacher of Torah. The basic form of the rabbi developed in the Pharisaic and Talmudic era, when learned teachers assembled to codify Judaism's written and oral laws. The first sage for whom the Mishnah uses the title of rabbi was Yohanan ben Zakkai, active in the early-to-mid first century CE. In more recent centuries, the duties of a rabbi became increasingly influenced by the duties of the Protestant Christian minister, hence the title "pulpit rabbis", and in 19th-century Germany and the United States rabbinic activities including sermons, pastoral counseling, and representing the community to the outside, all increased in importance.

Kagan's childhood friend Margaret Raymond recalled that she was a teenage smoker but not a partier. [11] On Saturday nights, Raymond and Kagan were "more apt to sit on the steps of the Metropolitan Museum of Art and talk." [11] Kagan also loved literature and reread Jane Austen's Pride and Prejudice every year. [11] In her 1977 Hunter College High School yearbook, she is pictured in a judge's robe and holding a gavel. [14] 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." [15]

Margaret Raymond is an American legal scholar who is the Fred W. and Vi Miller dean and law professor of the University of Wisconsin School of Law. Her research interests include ethics and criminal law.

Metropolitan Museum of Art Art museum in New York City, New York

The Metropolitan Museum of Art of New York City, colloquially "the Met", is the largest art museum in the United States. With 6,953,927 visitors to its three locations in 2018, it was the third most visited art museum in the world. Its permanent collection contains over two million works, divided among seventeen curatorial departments. The main building, on the eastern edge of Central Park along Museum Mile in Manhattan's Upper East Side is by area one of the world's largest art galleries. A much smaller second location, The Cloisters at Fort Tryon Park in Upper Manhattan, contains an extensive collection of art, architecture, and artifacts from Medieval Europe. On March 18, 2016, the museum opened the Met Breuer museum at Madison Avenue on the Upper East Side; it extends the museum's modern and contemporary art program.

Jane Austen English novelist

Jane Austen was an English novelist known primarily for her six major novels, which interpret, critique and comment upon the British landed gentry at the end of the 18th century. Austen's plots often explore the dependence of women on marriage in the pursuit of favourable social standing and economic security. Her works critique the novels of sensibility of the second half of the 18th century and are part of the transition to 19th-century literary realism. Her use of biting irony, along with her realism, humour, and social commentary, have long earned her acclaim among critics, scholars, and popular audiences alike.

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. [16] She was elected president of the student government and served on a student-faculty consultative committee. [17] After graduating, Kagan attended Princeton University, where she earned a B.A. summa cum laude in history in 1981. [18] She was particularly drawn to American history and archival research. [19] 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." [20] Wilentz says Kagan did not mean to defend socialism, noting that she "was interested in it. To study something is not to endorse it." [21]

As an undergraduate, Kagan also served as editorial chair of The Daily Princetonian . [18] [22] Along with eight other students, [lower-alpha 1] 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". [23] Despite the liberal tone of The Daily Princetonian's editorials, Kagan was politically restrained in her dealings with fellow reporters. Her Daily Princetonian colleague Steven Bernstein has said he "cannot recall a time in which Kagan expressed her political views". [24] He described Kagan's political stances as "sort of liberal, democratic, progressive tradition, and everything with lower case". [24]

Kagan graduates from Harvard Law School in 1986. Kaganharvardlaw.png
Kagan graduates from Harvard Law School in 1986.

In 1980, Kagan received Princeton's Daniel M. Sachs Class of 1960 Graduating Scholarship, [lower-alpha 2] 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. [26] She earned a Master of Philosophy in Politics at Oxford in 1983. [27]

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. [28] 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. [29] In 1986 she received a Juris Doctor, magna cum laude , from Harvard Law School, where she was supervisory editor of the Harvard Law Review . [30] [31] 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." [32]

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". [33] 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. [34] Marshall nicknamed the 5 ft 3 in (1.60 m) Kagan "Shorty". [11]

Kagan next entered private practice as an associate at the Washington, D.C., law firm of Williams & Connolly. [6] 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". [21]

White House and judicial nomination

Kagan in the Oval Office with President Bill Clinton in 1997 during her tenure as Deputy Assistant to the President for Domestic Policy Bill Clinton and Elena Kagan (cropped).jpg
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 controversial issues plaguing 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]

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. [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]

Kagan as Dean of Harvard Law School in 2008 Elena Kagan 2.jpg
Kagan as Dean of Harvard Law School in 2008

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]

Kagan's official portrait as Dean of Harvard Law School Dean Kagan.jpg
Kagan's official portrait as Dean of Harvard Law School

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]

Solicitor General

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

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. [69] 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". [70] The Senate confirmed her on March 19, 2009, by a vote of 61 to 31. [71] She was the first woman to hold the position. [72] 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. [69] 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. [72] [44] Thus the arguments she made as Solicitor General were not necessarily indicative of her personal beliefs. [72]

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). [73] 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. [73] [74] [75] In a 5-4 decision, the court overturned precedent and allowed corporations to spend freely in elections, a major defeat for the Obama administration. [76]

During her 15 months as Solicitor General, Kagan argued six cases before the Supreme Court. [77] The Washington Post described her style during argument as "confident" and "conversational". [72] She helped win four cases: Salazar v. Buono , 59 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). [78] [lower-alpha 3]

Supreme Court

Nomination

Solicitor General Kagan meets with Obama in the Oval Office, April 2010. Obama would nominate Kagan to the Supreme Court the following month. President Barack Obama meets with Solicitor General Elena Kagan in the Oval Office.jpg
Solicitor General Kagan meets with Obama in the Oval Office, April 2010. Obama would nominate Kagan to the Supreme Court the following month.

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

Obama nominates Kagan to be an Associate Justice for the United States Supreme Court

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

On May 10, 2010, Obama nominated Kagan to the Supreme Court. [89] 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. [90]

Confirmation hearings

Kagan, Obama, and Roberts before her investiture ceremony, October 1, 2010 Kagan Roberts and Obama.jpg
Kagan, Obama, and Roberts before her investiture ceremony, October 1, 2010

Kagan's confirmation hearings before the Senate Judiciary Committee began on June 28. [91] As they began, Kagan was expected to be confirmed, with Republican Senator John Cornyn calling Kagan "justice-to-be". [92] During the hearings, she demonstrated a deep knowledge of Supreme Court cases, expanding 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. [93] Like many prior nominees, including Chief Justice John Roberts, she declined to answer whether she thought particular cases were rightly decided or how she would rule on particular issues. [93] [94] Republican Senator John Kyl and Democratic Senator Arlen Specter [lower-alpha 4] criticized her evasiveness. Specter said it obscured the way justices actually ruled once on the court. [94] He noted that Kagan published an article in the Chicago Law Review in 1995 in which she criticized the evasiveness she came to practice. [96] [92] Republican Senators criticized Kagan's background as more political than judicial; Kagan responded by promising she would be impartial and fair. [91] 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. [97] 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. [98]

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. [99] [100] 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. [101] [102] [103] She is also the fourth female justice in the court's history, [lower-alpha 5] and the eighth Jewish justice. [104] [lower-alpha 6]

Tenure

Kagan (right), as a nominee to the Supreme Court, meets with Senator Jeanne Shaheen Jeanne Shaheen Elena Kagan.jpg
Kagan (right), as a nominee to the Supreme Court, meets with Senator Jeanne Shaheen

Ideologically, Kagan is part of the Supreme Court's liberal wing: [106] [107] [108] she voted with the liberal bloc in King v. Burwell, 576 U.S. 14-114(2015), finding that Obamacare's subsidies and individual mandate are constitutional, and in Obergefell v. Hodges, 576 U.S. 14-556(2015), which prohibits states from outlawing same-sex marriage. [109] 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. [110] Still, FiveThirtyEight observed that Kagan voted with her more liberal peers, Ginsburg and Sotomayor, over 90% of the time. [111] 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. [112]

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. [113] 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. [114]

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. [115] 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. [116] [117] 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. [118] Kagan's opinion included several references to Spider-Man. [119]

First Amendment

Kagan's first dissent came in the First Amendment case Arizona Christian School Tuition Organization v. Winn , 563 U.S. 125(2011). [120] Writing for the liberal wing, she took issue with the majority's creation of an exception to the Establishment Clause of the First Amendment. [120] 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. [120] [121] 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. [120]

John Roberts, 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. State of the Union (40006022831).jpg
John Roberts, 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 , 572 U.S. 12-696(2014), Kagan wrote a dissent arguing that a prayer at a town council meeting failed to treat all Americans the same regardless of religion. [123] Greece involved a town in New York inviting chaplains, for several years all Christian, to give a prayer before town council meetings. [124] 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. [125] Kagan argued the use of prayer showed a preference for a particular religion and thus violated Americans' First Amendment rights. [125]

Sixth Amendment

Kagan dissented in Luis v. United States , 578 U.S. 14-419(2016), 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. [126] 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. [127] A prior Supreme Court case, United States v. Monsanto, 491 U.S. 600(1989), 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. [128] 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. [126] [128] 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. [128] 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. [126] [128] [127] 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. [128]

Gerrymandering

Kagan wrote for the majority in Cooper v. Harris , 581 U.S. 15-1262(2017), striking down the configuration of two of North Carolina's congressional districts. [129] The court held the districts' boundaries were unconstitutional because they relied excessively on race and did not pass the strict scrutiny standard of review. [130] [131] [132] 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. [131] 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. [130] The increase of black voters in District 1 resulted in a decrease of black voters in other districts. [132] 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. [130] 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. [130] [131]

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. [133] She wrote the fewest opinions for the terms from 2011 through 2014, tying with Kennedy in 2011 and 2013. [134]

Kagan's writing has been characterized as conversational, employing a range of rhetorical styles. [135] She has said that she approaches writing on the court like she used to approach the classroom, with numerous strategies to engage the reader. [136] Her opinions use examples and analogies to make them more understandable to a broad audience. [133] [137]

Other activities

The four women justices of the United States Supreme Court: Sandra Day O'Connor, Sonia Sotomayor, Ruth Bader Ginsburg, and Kagan, October 2010. O'Connor is not wearing a robe because she is the only one of the four who was retired when the picture was taken. O'Connor, Sotomayor, Ginsburg, and Kagan.jpg
The four women justices of the United States Supreme Court: Sandra Day O'Connor, Sonia Sotomayor, Ruth Bader Ginsburg, and Kagan, October 2010. O'Connor is not wearing a robe because she is the only one of the four who was retired when the picture was taken.

Like other justices, Kagan makes public appearances when she is not hearing cases. [138] In her first four years on the court, she made at least 20 public appearances. [139] Kagan tends to choose speaking engagements that allow her to speak to students. [138]

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". [140] 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. According to the Smithsonian, the painting was on loan to the museum for three years. [141] In 2018, Kagan received the Marshall-Wythe Medallionan from William & Mary Law School, [142] and an honorary degree of Doctor of Humane Letters from Hunter College. [143]

Personal life

Kagan's Harvard colleagues and friends have characterized her as a good conversationalist, warm, and having a good sense of humor. [144] Before joining the Supreme Court, she was known to play poker and smoke cigars. [144] [145] Early on in her tenure as a justice, Kagan began socializing with several of her new colleagues. [146] She attended the opera with Ginsburg, had dinner with Sotomayor, attended legal events with Kennedy and Clarence Thomas, and went hunting with Scalia. [146] The hunting trips stemmed from a promise Kagan made to Senator James Risch of Idaho during a meeting before her confirmation. Risch expressed concern that as a New York City native Kagan did not understand the importance of hunting to his constituents. Kagan offered to go hunting with Risch before promising instead to go hunting with Scalia if confirmed. According to Kagan, Scalia later laughed when she told him of the promise and he took her to his hunting club for the first of several hunting trips. [147] Kagan is known to spend time with longtime friends from law school and her stint in the Clinton administration rather than attending DC social events she is invited to as a justice. [146] She has never married. [148]

See also

Notes

  1. Princeton student body president, and future Governor of New York, Eliot Spitzer, was one of the other students.
  2. Fellowship in memory of Rhodes Scholar from Princeton, Daniel M. Sachs. [25]
  3. In addition to Citizen's United and the four cases she won, the final case she argued as Solicitor General, Robertson v. United States ex rel. Watson , 560 U.S. 272(2010) was later dismissed in a per curiam opinion. [79]
  4. Specter was first elected to the Senate as a Republican. He changed parties in 2009 but lost the Democratic primary for his seat in May 2010. [95]
  5. For the first time, the Court had three sitting female justices: Kagan, Ginsburg, and Sotomayor.
  6. Kagan's confirmation brought the number of sitting Jewish justices to three. [105]

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Sources

Academic offices
Preceded by
Robert C. Clark
Dean of Harvard Law School
2003–2009
Succeeded by
Martha Minow
Legal offices
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Edwin Kneedler
Acting
Solicitor General of the United States
2009–2010
Succeeded by
Neal Katyal
Acting
Preceded by
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Associate Justice of the Supreme Court of the United States
2010–present
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U.S. order of precedence (ceremonial)
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as Associate Justice of the Supreme Court
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