Elena Kagan

Elena Kagan
Elena Kagan
Born	April 28, 1960 (age 66); Manhattan, New York City, U.S.
Occupation(s)	Attorney, jurist, academic
Years active	1986–present
Known for	Associate Justice of the Supreme Court of the United States

Elena Kagan ( ; born April 28, 1960) is a distinguished American attorney currently serving as an associate justice on the Supreme Court of the United States. Appointed by President Barack Obama in 2010, she holds the distinction of being the fourth female justice to join the Court.

A native of New York City, Kagan completed her education at Princeton University, Worcester College, Oxford, and Harvard Law School. Early in her career, she clerked for a federal appellate judge and later for Supreme Court Justice Thurgood Marshall. Her professional background includes a professorship at the University of Chicago Law School, service as Associate White House Counsel and policy advisor during President Bill Clinton’s administration, and an unacted-upon nomination to the D.C. Circuit Court of Appeals. Subsequently, she returned to academia, becoming a professor and making history as Harvard Law School’s first female dean.

In 2009, Kagan broke new ground as the inaugural female Solicitor General of the United States. The next year, President Obama nominated her to succeed Justice John Paul Stevens on the Supreme Court. The Senate confirmed her nomination with a 63–37 vote. As of 2022, she remains the latest justice appointed without prior judicial service. Initially emphasizing consensus and collaboration, her judicial philosophy evolved after the conservative majority overturned Roe v. Wade. Kagan has penned majority opinions in key cases such as Cooper v. Harris, Chiafalo v. Washington, and Kisor v. Wilkie, while authoring influential dissents in decisions including Rucho v. Common Cause, West Virginia v. EPA, Brnovich v. DNC, Janus v. AFSCME, and Seila Law v. CFPB.

Early life

Born on April 28, 1960, in Manhattan, Elena Kagan is the middle child among three siblings of Robert Kagan, a lawyer advocating for tenants’ rights, and Gloria (Gittelman) Kagan, an educator at Hunter College Elementary School. Both her parents were descendants of Russian Jewish immigrants. Raised in New York City, she has two brothers named Marc and Irving.

The family resided in a third-floor apartment near West End Avenue and 75th Street and regularly attended Lincoln Square Synagogue. Known for her strong-willed nature, Kagan had disagreements with her Orthodox rabbi, Shlomo Riskin, concerning her bat mitzvah ceremony. They reached a compromise whereby she would have a ritual bat mitzvah equivalent in significance to boys’ bar mitzvahs; she ultimately read from the Book of Ruth on a Friday evening. Today, she identifies with Conservative Judaism.

A childhood companion recalled that while Kagan smoked as a teenager, she was not involved in partying. Their Saturday evenings were often spent engaged in quiet discussions near the Metropolitan Museum of Art. She developed a passion for literature early on, revisiting Jane Austen’s Pride and Prejudice every year. In her 1977 yearbook from Hunter College High School, she is depicted wearing a judge’s robe and holding a gavel, accompanied by a quotation from former Supreme Court Justice Felix Frankfurter: "Government is itself an art, one of the subtlest of arts."

Education

Kagan was a student at Hunter College High School, a prestigious school located in New York City, where she distinguished herself by being elected president of the student government and participating in a student-faculty advisory committee. She completed her undergraduate studies at Princeton University in 1981, graduating summa cum laude with a Bachelor of Arts in history, concentrating on American history and archival methods. Her senior thesis, overseen by historian Sean Wilentz, explored socialism in New York City between 1900 and 1933, reflecting an analytical perspective rather than ideological support. As editorial chair of The Daily Princetonian, she helped draft a "Declaration of the Campaign for a Democratic University," advocating for greater transparency in university administration. Kagan was awarded Princeton's Daniel M. Sachs Class of 1960 Graduating Scholarship, which funded her studies at Worcester College, Oxford, where she earned a Master of Philosophy in politics in 1983. Her thesis offered a critical examination of the Supreme Court’s exclusionary rule.

In 1983, Kagan enrolled at Harvard Law School. Although she initially faced academic difficulties, she eventually excelled, achieving an A grade in 17 out of 21 courses and serving as a supervisory editor for the Harvard Law Review. She also gained practical legal experience as a summer associate at the Wall Street law firm Fried, Frank, Harris, Shriver & Jacobson, focusing on litigation. Kagan graduated in 1986 with a Juris Doctor, earning magna cum laude honors. Her intelligence, interpersonal skills, and adeptness at navigating Harvard Law’s politically charged environment were widely acknowledged by peers and faculty.

Early career

Following law school, Kagan clerked for Judge Abner J. Mikva on the U.S. Court of Appeals for the District of Columbia Circuit from 1986 to 1987, where she was highly regarded as an exceptional clerk. She then served as a clerk to Justice Thurgood Marshall of the U.S. Supreme Court from 1987 to 1988; Marshall brought her on board to assist in revitalizing his judicial opinions during a period marked by increasing conservatism on the Court.

From 1989 to 1991, Kagan practiced law at the Washington, D.C. firm Williams & Connolly, specializing in cases related to First Amendment rights and media law, including libel suits.

Kagan joined the faculty at the University of Chicago Law School as an assistant professor in 1991, where she crossed paths with future President Barack Obama. During this time, she published significant law review articles addressing First Amendment regulation and governmental intent within free speech jurisprudence, with detailed analyses of landmark decisions such as R.A.V. v. City of St. Paul and foundational cases involving draft-card burning and flag desecration.

In 1993, Senator Joe Biden appointed her as special counsel to the Senate Judiciary Committee, where she played a role in Justice Ruth Bader Ginsburg's Supreme Court confirmation process.

Kagan achieved tenure by 1995; while some colleagues expressed reservations regarding her publication volume, she was noted for strong support from students.

Clinton administration

Between 1995 and 1996, Kagan worked as Associate White House Counsel under President Bill Clinton, addressing matters such as the Whitewater controversy, the White House travel office controversy, and litigation related to Clinton v. Jones. She then served from 1997 to 1999 as Deputy Assistant to the President for Domestic Policy and deputy director of the Domestic Policy Council, concentrating on budgetary appropriations, campaign finance reform initiatives, and social welfare programs. Her contributions during this period are preserved at the Clinton Library. In 1997, she coauthored a memorandum urging President Clinton to endorse restrictions on late-term abortions to uphold his credibility concerning HR 1122 and deter Congressional attempts to override his veto.

On June 17, 1999, President Clinton nominated Kagan to fill a vacancy on the U.S. Court of Appeals for the District of Columbia Circuit, replacing Judge James L. Buckley, who had assumed senior status in 1996. However, Senate Judiciary Committee Chairman Orrin Hatch, a Republican, chose not to schedule confirmation hearings, effectively halting her nomination. When that Senate session ended, her nomination expired alongside that of fellow Clinton nominee Allen Snyder.

Academia

Following her tenure at the White House and an uncompleted judicial nomination, Kagan returned to the academic world in 1999. She initially aimed to rejoin the University of Chicago but was not rehired due to doubts about her dedication after departing from a tenured role. Subsequently, she accepted a visiting professorship at Harvard Law School, where she produced a highly regarded law review article examining presidential authority over federal administrative law.

In 2001, Kagan was promoted to full professor at Harvard Law and ascended to the deanship in 2003, taking over from Robert C. Clark. Her leadership emphasized enhancing student experience by reforming the curriculum, upgrading facilities, and introducing perks such as complimentary morning coffee. She was recognized for fostering consensus among faculty members, which helped ease ideological divides.

Kagan spearheaded a $400 million fundraising initiative titled "Setting the Standard," which concluded in 2008 by surpassing its goal with $476 million raised—19% above the original target. Under her direction, the faculty expanded significantly through recruiting eminent academics like Cass Sunstein from the University of Chicago and Lawrence Lessig from Stanford, alongside conservative figures such as former Bush administration official Jack Goldsmith to broaden ideological diversity.

Kevin Washburn, then dean of the University of New Mexico School of Law, credited Kagan with transforming Harvard Law into an institution more oriented toward student needs. During her deanship, she maintained a ban on military recruiters on campus in protest against the military’s "Don't Ask, Don't Tell" policy. Even after a Supreme Court ruling mandated allowing military recruitment on campus to preserve federal funding, Kagan permitted recruiters' return but actively encouraged student demonstrations opposing the policy.

In October 2003, she voiced strong condemnation of military recruitment on campus, describing it as "a profound wrong—a moral injustice of the first order."

Between 2005 and 2008, Kagan served on the Research Advisory Council for the Goldman Sachs Global Markets Institute, receiving compensation of $10,000.

By early 2007, Kagan emerged as a finalist for Harvard University's presidency following Lawrence Summers's resignation; however, Drew Gilpin Faust was ultimately appointed. Despite reportedly feeling disappointed, law students honored her leadership with a celebratory event.

Solicitor General

On January 5, 2009, President-elect Barack Obama announced his intention to nominate Kagan as Solicitor General. Prior to this selection, she was also considered for Deputy Attorney General. Although she had never argued before a court at that time, two former solicitors general—Robert Bork and Kenneth Starr—had similarly lacked prior Supreme Court appearances.

During her confirmation hearings, senators primarily questioned whether she would defend laws she personally disagreed with and expressed concerns about her limited courtroom experience. Kagan assured that she would uphold statutes such as the Defense of Marriage Act "if there is any reasonable basis to do so." The Senate confirmed her appointment on March 19, 2009, by a vote of 61 to 31. She became the first woman to serve as Solicitor General. Upon assuming office, Kagan committed to defending any statute with a plausible legal argument irrespective of her personal convictions. In this role, she represented the United States in Supreme Court appeals without necessarily reflecting her own views in oral arguments.

Kagan made her Supreme Court debut on September 9, 2009, during the re-argument of Citizens United v. Federal Election Commission. She urged justices to uphold a longstanding precedent from 1990 that limited corporate spending in elections or alternatively to confine any ruling narrowly to corporations similar to Citizens United rather than broadly revising corporate campaign finance regulations. The Court’s narrow 5–4 decision overturned this precedent and permitted corporations unrestricted spending in elections—a notable defeat for the Obama administration.

Throughout her fifteen-month tenure as Solicitor General, Kagan argued six cases before the Supreme Court. The Washington Post characterized her approach as "confident" and "conversational." She secured victories in four cases: Salazar v. Buono, United States v. Comstock, Holder v. Humanitarian Law Project, and Free Enterprise Fund v. Public Company Accounting Oversight Board. Her last case before leaving office was Robertson v. United States ex rel. Watson, which was later dismissed through a per curiam decision.

Nomination

Prior to Barack Obama's presidency, many anticipated Kagan as a likely Supreme Court nominee under a Democratic administration. In 2009, when Associate Justice David Souter declared his intention to retire, Obama faced his initial opportunity to appoint a justice. Senior adviser David Axelrod later disclosed that Justice Antonin Scalia had expressed optimism that Obama would select Kagan, admiring her intellect. On May 13, 2009, reports surfaced suggesting Obama was evaluating Kagan among other prospects. Nevertheless, on May 26, 2009, Obama chose to nominate Sonia Sotomayor.

After Justice John Paul Stevens announced his retirement in April 2010, Kagan once again became a prominent candidate for the vacancy. Supreme Court commentator and Kagan’s former law school peer Jeffrey Toobin characterized her as "very much an Obama-type person, a moderate Democrat, a consensus builder," though some progressive voices worried her confirmation could shift the Court toward the right.

On May 10, 2010, Obama formally put forward Kagan’s nomination to the Supreme Court. Her candidacy received considerable endorsement from more than one-third of U.S. law school deans—69 in total—who commended her abilities in coalition-building, her grasp of legal doctrine and policy, and her record of legal analysis through an open letter supporting her confirmation.

Confirmation hearings

Kagan’s confirmation proceedings before the Senate Judiciary Committee commenced on June 28. She was broadly anticipated to be confirmed; Senator John Cornyn referred to her as "justice-to-be." Throughout the hearings, she exhibited comprehensive familiarity with Supreme Court rulings, addressing cases cited by senators without reliance on notes. While some Democratic senators criticized recent judicial decisions as "activist," Kagan refrained from aligning with those critiques. Similar to numerous nominees including Chief Justice John Roberts, she declined to discuss specific cases or predict how she might rule. Senators Jon Kyl and Arlen Specter reproached her for being evasive; Specter pointed out that Kagan had previously authored an article criticizing such avoidance.

Republican senators perceived her background as more political than judicial; in response, she pledged to maintain impartiality. The Senate Judiciary Committee voted 13–6 on July 20, 2010, recommending her confirmation. Subsequently, on August 5, the full Senate approved her nomination by a vote of 63–37. The final tally largely reflected party divisions, with five Republicans (Richard Lugar, Judd Gregg, Lindsey Graham, Susan Collins, and Olympia Snowe) voting in favor and one Democrat (Ben Nelson) opposing.

The swearing-in ceremony for Kagan took place on August 7, 2010, at the White House, where Chief Justice John Roberts administered both the constitutional and judicial oaths. She became the 112th justice and the 100th associate justice appointed to the Supreme Court. Significantly, she was the first nominee without previous judicial experience since 1972 and only the fourth woman ever appointed as a justice. Additionally, her appointment marked the eighth Jewish justice in history and increased the number of sitting Jewish justices to three.

Early Involvement

Given her previous position as solicitor general, Kagan recused herself from 28 out of 78 cases in her initial year on the Supreme Court to prevent any conflicts of interest. Additionally, she recused herself from the 2017 immigrant-detention case Jennings v. Rodriguez because she had previously authorized a filing in that matter while serving as solicitor general.

Kagan’s inaugural authored opinion as a justice was in Ransom v. FIA Card Services, which addressed the interpretation of statutory language concerning which types of income a debtor may protect from creditors during bankruptcy. In an 8–1 ruling, she concluded that under Chapter 13 Bankruptcy provisions, debtors who fully own their vehicles and do not have loan or lease obligations cannot claim allowances related to car expenses. She highlighted that the statute’s reference to "applicable" restricts these allowances to expenses genuinely pertinent to the debtor’s circumstances.

First Amendment Issues

Kagan’s initial dissent appeared in the First Amendment case Arizona Christian School Tuition Organization v. Winn. Representing the Court’s liberal faction, she opposed the majority’s decision to carve out an exception to the Establishment Clause. The majority held that Arizona taxpayers lack standing to contest tax credits granted for donations benefiting organizations that provide scholarships to religious schools, differentiating tax credits from direct grants. Kagan criticized this distinction as "arbitrary," noting both mechanisms effectively support religious institutions and thus create a loophole for government funding of religion. In a separate Establishment Clause dispute, Town of Greece v. Galloway, Kagan dissented again, asserting that the town council’s practice of opening meetings with prayers exclusively led by Christian chaplains demonstrated preferential treatment toward one faith. Unlike Marsh v. Chambers, which permitted legislative prayers, she emphasized that the town board serves as a public forum for all residents, making such exclusive prayers unconstitutional under the First Amendment.

Sixth Amendment Concerns

In Luis v. United States (2016), Kagan dissented when the five-justice majority ruled that pretrial seizure of assets not connected to criminal conduct infringed upon a defendant’s Sixth Amendment right to counsel if those funds were necessary to retain chosen legal representation. The defendant, Sila Luis, was charged with Medicare fraud involving approximately $45 million in allegedly fraudulent claims. Prosecutors sought to freeze $2 million earmarked for her legal defense, although most of the alleged fraudulent proceeds had already been expended.

A precedent case, United States v. Monsanto (1989), had permitted courts to freeze assets derived from criminal activity even if intended for legal fees. The majority in Luis distinguished their decision by noting that Luis’s frozen assets were untainted by the crime itself, unlike in Monsanto. Justice Kennedy dissented, opposing distinctions based on how rapidly illicit proceeds were spent. Kagan agreed that the ruling introduced inconsistencies and arbitrary lines but suggested that Monsanto may have been wrongly decided initially. While open to overruling that precedent eventually, she refrained from doing so in this case since Luis had not requested it.

Her vote was grounded in procedural concerns, expressing doubt about freezing a defendant’s property before conviction—when presumed innocent—based solely on probable cause that such property might be subject to forfeiture.

Gerrymandering

In Cooper v. Harris (2017), Kagan penned the majority opinion that struck down two of North Carolina's congressional districts due to unconstitutional racial gerrymandering. The Court determined that the district lines failed the strict scrutiny test by placing undue emphasis on race. Kagan articulated a crucial doctrine: electoral districts primarily shaped by racial considerations may be illegal even if the intent is to categorize voters based on political affiliation. Utilizing this standard, the Court invalidated North Carolina's 1st district, where legislators increased the black voting-age population despite an existing capacity for preferred candidate election, as well as District 12 for comparable racial alterations. While the dissent contended that challengers did not demonstrate race as the cause of changes in District 12, Kagan clarified that race need only serve as a predominant factor, not to the exclusion of political motivations.

In June 2019, Kagan dissented in Rucho v. Common Cause, opposing the Court's 5–4 decision that claims of partisan gerrymandering are beyond judicial review. She underscored the judiciary’s responsibility to safeguard free and equitable elections, cautioning that partisan gerrymandering endangers democratic integrity. Justices Ginsburg, Breyer, and Sotomayor joined her dissenting opinion.

Voting rights

During Brnovich v. DNC, Kagan dissented alongside Breyer and Sotomayor against Arizona statutes that rejected out-of-precinct ballots and prohibited ballot collection efforts. She emphasized how these regulations disproportionately impact African-American, Latino, and Native American voters. Kagan stressed the necessity of maintaining laws that guarantee equal voting access across racial groups and criticized the Court for diminishing such protections.

Environment

Kagan, joined by Justices Breyer and Sotomayor, dissented in West Virginia v. EPA, which nullified the Clean Power Plan. She highlighted the Environmental Protection Agency’s vital role in combating climate change through oversight of fossil-fuel power plants, which contribute significantly to pollution. Kagan warned against the Court encroaching on legislative authority and expert agency expertise in climate policy matters, emphasizing the critical importance of regulating carbon emissions.

Writing style

At the outset of her Supreme Court service, Kagan authored fewer opinions than her colleagues, focusing primarily on majority rulings or dissents assigned by senior justices when consensus was present. This collaborative approach initially obscured her distinct judicial voice.

Her writing is distinguished by a conversational tone and varied rhetorical techniques designed to engage a wide audience, reflecting her pedagogical style as an educator. She frequently uses illustrative examples and analogies to enhance clarity. For instance, in Kimble v. Marvel Entertainment, LLC, a 6–3 ruling favoring Marvel, she wrote the majority opinion affirming that patentees cannot collect royalties after patent expiration, cleverly incorporating references to Spider-Man to clarify her arguments.

Jurisprudence

Kagan is widely viewed as a centrist on the Court. Following her nomination, White House officials described her as a "pragmatic progressive" to reassure liberal constituencies. On the bench, she prioritized building consensus until the conservative supermajority overturned Roe v. Wade. After Dobbs v. Jackson Women's Health Organization, she openly criticized the Court’s conservative trajectory. She sided with liberal justices in landmark decisions such as King v. Burwell, which upheld ObamaCare subsidies and mandates, and Obergefell v. Hodges, which legalized same-sex marriage nationwide. In 2018, Slate identified Kagan as a centrist along with Roberts, Stephen Breyer, and Anthony Kennedy. Nevertheless, analysis by FiveThirtyEight showed she aligned with liberals Ginsburg and Sotomayor over 90% of the time—most frequently voting with Breyer (93%) and least often with Samuel Alito (58.82%).

Kagan currently serves as the circuit justice for the Ninth Circuit, which is geographically the largest circuit and includes states such as California, Arizona, and Washington, along with U.S. territories like Guam and the Northern Mariana Islands. Before Brett Kavanaugh's confirmation led to her reassignment to this circuit, she managed emergency applications for both the Sixth and Seventh Circuits.

Other engagements

Similar to her fellow justices, Kagan participates in public events when not presiding over cases. Within her initial four years on the bench, she appeared publicly on at least 20 occasions, frequently opting for opportunities that enabled her to address student audiences.

In 2013, Time magazine included Kagan among its list of the 100 most influential individuals. The accompanying profile was penned by former Supreme Court Justice Sandra Day O'Connor, who described Kagan as "a sharp legal intellect" and "an outstanding communicator." That same year, a portrait featuring the four female Supreme Court justices—Kagan, Sotomayor, Ginsburg, and O'Connor—was revealed at the National Portrait Gallery in Washington, D.C. Later, in 2018, Kagan was honored with the Marshall-Wythe Medallion from William & Mary Law School and received an honorary Doctor of Humane Letters degree from Hunter College.

Personal background

Kagan has never entered into marriage. During her confirmation process, an image of her playing softball led to unfounded rumors regarding her sexual orientation, which have been refuted by her acquaintances. Her peers at Harvard have characterized her as personable, approachable, and possessing a good sense of humor. Prior to joining the Supreme Court, she was known to enjoy poker and cigar smoking.

Early in her Supreme Court tenure, Kagan cultivated social relationships with several justices: attending operas with Ruth Bader Ginsburg, dining alongside Sonia Sotomayor, and participating in legal gatherings with Anthony Kennedy and Clarence Thomas. Additionally, she went hunting with Antonin Scalia—a commitment made to Senator Jim Risch to show familiarity with his constituents’ interests—and was welcomed into Scalia's hunting club for several excursions. Rather than frequently engaging in Washington, D.C.'s social scene, Kagan often prefers spending time with long-standing friends from law school and the Clinton administration.

Selected academic publications

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Notes

References

Sources

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External links

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Issue positions and quotes at OnTheIssues
Elena Kagan Through the Years – photo series by ABC News
Supreme Court Associate Justice Nomination Hearing on Elena Kagan in July 2010 United States Government Publishing Office