Elena Kagan

Supreme Court Justice

• Born: April 28, 1960
• Place of Birth: New York, New York

Elena Kagan was nominated to become a justice of the Supreme Court of the United States by President Barack Obama on May 10, 2010. The former law professor, White House counsel, dean of Harvard Law School, and United States solicitor general was confirmed by the US Senate on August 5, 2010. Her appointment to the country's highest court placed, for the first time in US history, three women on the Supreme Court at the same time. Kagan became the high court's fourth female justice and the eighth Jewish American justice.

Background

Elena Kagan was born on April 28, 1960, in New York City. Her mother, Gloria Gittelman, was a teacher, and her father, Robert Kagan, was a lawyer and community activist. Kagan grew up on the Upper East Side of New York City with two brothers, both of whom became public school teachers.

Kagan graduated from Hunter College High School in 1977 and went on to graduate summa cum laude with a bachelor’s degree in history from Princeton University in 1981. She studied at Oxford University on a fellowship and earned her master’s degree in philosophy. Kagan then enrolled at Harvard University Law School, where she edited the Harvard Law Review. During the summers, she clerked for federal appeals judge Abner Mikva at the US Court of Appeals and then for Supreme Court Justice Thurgood Marshall, who is best remembered for his efforts to advance civil rights issues in the judicial system.

Legal & Academic Career

After graduating from law school, Kagan worked in private practice for two years at the Washington, DC, law firm Williams & Connolly before accepting a teaching position at the University of Chicago Law School. After gaining tenure, she was asked by the administration of President Bill Clinton to serve as White House associate counsel in 1995. She served in that capacity for one year before being named deputy assistant to the president for domestic policy and deputy director of the Domestic Policy Council. In this position, Kagan worked closely with legislators to craft the tobacco bill that would authorize the Food and Drug Administration (FDA) to regulate tobacco products. While the bill never became law, she was seen as a consensus builder in her efforts to forge bipartisan support for the legislation on the Commerce Committee.

Months before the end of his term, Clinton nominated Kagan to the DC Circuit of Appeals, but her nomination was never considered by the Republican-controlled Senate. The US Appeals Court, the second-highest federal court, is often seen as a stepping stone to the Supreme Court. In fact, the Appeals seat went unfilled until Republican president George W. Bush named conservative judge John Roberts to the post in 2003. (Roberts went on to become the chief justice of the Supreme Court two years later.)

Kagan joined the faculty of Harvard Law School in 1999. In 2003, she was named dean of the law school. In assuming the post of dean, Kagan became responsible for upholding university policies, including the school's antidiscrimination policy, which is also required by the law school's accrediting body, the American Association of Law Schools (AALS). In adhering to university and AALS policy (and following a decision from the US Court of Appeals for the Third Circuit that would support her action), Kagan refused to allow the law school's career office to assist US military recruiters in their efforts for several months, as the US military at the time followed the "don't ask, don't tell" policy regarding gay and lesbian people serving in the military. Kagan did, however, allow military recruiters to use school classrooms and offices, and she worked with the school's veterans' office to act as a resource for those students seeking information about military service. At the same time, Kagan understood that rejecting US military recruiters could put her in violation of the Solomon Amendment, which allows the federal government to pull its funding from any university for failing to assist military recruiters. When it became clear that Harvard University would be held to the provisions of the Solomon Amendment and that the case was headed for the Supreme Court, Kagan again made the career services office available to military recruiters.

While the military recruitment incident was memorable, of short duration, and one that would be revisited repeatedly during her confirmation hearings, it was not representative of Kagan's experience at Harvard. As dean, she was successful in helping the school update its curriculum, improve facilities, and build consensus and ideological diversity among the faculty.

In March 2009, Kagan was confirmed as solicitor general in the Obama administration. In September 2009, she argued her first case in a courtroom, Citizens United v. Federal Election Commission, before the US Supreme Court. She lost the case, which would go on to be a highly controversial landmark.

Supreme Court Nomination

On May 10, 2010, Obama nominated Kagan to replace retiring justice John Paul Stevens on the Supreme Court. While she was noted as a consensus builder, many predicted that Kagan’s lack of courtroom and judicial experience would be an issue in her confirmation hearings. Additionally, her actions at Harvard relative to military recruitment became a sticking point for conservatives, who characterized Kagan as left-leaning and antimilitary.

Kagan's confirmation hearings were held in June 2010, and as predicted, conservatives questioned Kagan on her interaction with military recruiters at Harvard, her adherence to the judgments of her former boss Thurgood Marshall, and her lack of courtroom and judicial experience. However, she was successful in communicating her sense of humor and her humility to the Senate Judiciary Committee. Criticism of Kagan came from across the political spectrum, as politicians and pundits bemoaned the lack of substance or specifics in many of her answers. Kagan avoided making statements about how she would decide certain issues, as Chief Justice Roberts had done in his own confirmation hearings, claiming that she was uncomfortable taking a position on a hypothetical situation without reading relevant briefs and hearing oral arguments. The hearings raised questions about how the process could be made more efficient and effective.

On August 5, 2010, Elena Kagan's nomination to the Supreme Court was approved by the US Senate in a 63–37 vote. She joined Justices Ruth Bader Ginsburg and Sonia Sotomayor as the third woman on the court—a first in American history.

Supreme Court Tenure

Kagan filed her first opinion both as a judge and as a Supreme Court justice on January 11, 2011, in Ransom v. FIA Card Services. The case was decided 8–1, with only Justice Antonin Scalia dissenting. However, she became known for writing relatively few opinions throughout her early terms on the court. In part, this was due to that fact that she had to recuse herself from various early cases because of her work as counsel to President Clinton and solicitor general under President Obama. She also held the view that writing concurring opinions could detract from the court's consensus.

The youngest sitting judge at the time of her appointment, Kagan also earned a reputation as being more tuned into pop culture and contemporary technology issues than her colleagues. This was apparent in her majority opinion for Kimble v. Marvel Entertainment (2015), a case related to patent law and royalty payments, in which she made many comic book references. That same year Kagan was part of the majority in two landmark cases: King v. Burwell (2015) upheld the Affordable Care Act, the health care law popularly known as Obamacare; Obergefell v. Hodges (2015) ruled same-sex marriage to be a constitutional right. Some critics argued she should have recused herself from the King case due to ties to the Obama administration, but the court refused to hear allegations from a conservative group that her judicial independence was compromised. Though less controversial, observers also noted that her stance on Obergefell countered her confirmation hearing suggestion that she did not view same-sex marriage as a federal right.

Kagan wrote the majority opinion for the 2017 case Cooper v. Harris, stating on behalf of the Supreme Court that two of North Carolina's congressional districts were arranged in an unconstitutional manner. In June 2019, Kagan dissented in Rucho v. Common Cause, disagreeing with the court's ruling that partisan gerrymandering is not justicable.

Kagan once again dissented with the court in 2022, arguing against the Supreme Court's decision to overturn Roe v. Wade, removing federal protections for abortion. In 2024, Kagan publicly called for better enforcement mechanisms that would ensure that Supreme Court justices obeyed their ethics code.

Bibliography

Associated Press. "Elena Kagan Gives First Opinion as a Supreme Court Justice." Christian Science Monitor. Christian Science Monitor, 11 Jan. 2011. Web. 15 Jan. 2015.

Baker, Peter, and Jeff Zeleny. "Obama Picks Kagan as Justice Nominee." New York Times. New York Times, 9 May 2010. Web. 15 Jan. 2015.

"Elena Kagan." Oyez, www.oyez.org/justices/elena‗kagan. Accessed 3 Oct. 2024.

Gerstein, Josh. "Elena Kagan Calls for Better Enforcement of Supreme Court's Ethics Code." Politico, 2024, www.politico.com/news/2024/07/25/elena-kagan-supreme-court-ethics-reform-00171317. Accessed 3 Oct. 2024.

Goldstein, Amy. "Foes May Target Kagan's Stance on Military Recruitment at Harvard." Washington Post. Washington Post, 18 Apr. 2010. Web. 15 Jan. 2015.

Murse, Tom. "Biography of Elena Kagan." ThoughtCo., 2 Jan. 2020, www.thoughtco.com/biography-of-elena-kagan-4161102. Accessed 3 Oct. 2024.