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Elena Kagan

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Elena Kagan
Elena Kagan.jpg
Current Court Information:
Supreme Court of the United States
Title:   Associate Justice
Position:   Seat #5
Appointed by:   Barack Obama
Approval vote:   63-37
Active:   8/7/2010 - Present
Preceded by:   John Paul Stevens
Past post:   United States Solicitor General
Past term:   2009-2010
Personal History
Born:   April 28, 1960
Hometown:   New York, NY
Undergraduate:   Princeton, A.B., 1981
Law School:   Harvard Law, J.D., 1986
Grad. School:   Worcester College, Oxford, M.Phil., 1983

Elena Kagan is an Associate Justice of the Supreme Court of the United States. She was sworn in on August 7, 2010 after an nomination from Barack Obama.[1] At the time of her appointment, she was the United States Solicitor General.[2]

Kagan is the youngest person on the court, the third woman on the current court, and the fourth woman in history to be a Supreme Court Justice.[3]

Early life and education

Kagan was born and raised in New York City.

Kagan earned her A.B. at Princeton University in 1981. She went on to pursue and earn a M.Phil. from Worcester College, Oxford University two years later. Three years after her masters, she earned her J.D. from Harvard Law School.[4][5]

Professional career

Prior to joining the court, Kagan was the Solicitor General of the United States. Kagan became the United States Solicitor General after being nominated to that position by Barack Obama on January 5, 2009 and confirmed by the U.S. Senate on March 19, 2009. Kagan was confirmed by the Senate on a supermajority 61-31 vote with 8 senators not voting.[6][2]

Kagan was the dean of Harvard Law School from 2003 to 2009 and the Charles Hamilton Houston Professor of Law at Harvard University from 1999 to 2003. She served in several positions in the Clinton administration, including as Director of the Domestic Policy Council from 1997 to 99. Kagan also served as a professor of law at the University of Chicago Law School from 1991 to 1997. From 1989 to 1991, Kagan worked in the private practice of law. Kagan served a law clerk to Supreme Court Justice Thurgood Marshall and Judge Abner Mikva of the D.C. Circuit during the 1987-88 term and from 1986-1987, respectively.[7][2]

Kagan was the first female dean of Harvard Law and she was also the first female Solicitor General.[8]

Solicitor General nomination

Kagan Committee Questionnaire Available Here (solicitor general nomination)
Questions and Responses for the Record Available Here (solicitor general nomination)

During her hearings regarding nomination as United States Solicitor General, Senator Arlen Specter, then the ranking Republican member of the Senate Judiciary Committee, said that Kagan’s answers to his questions were "inadequate for confirmation purposes." Specter became frustrated because Kagan often refused to give her own views regarding "whether particular Supreme Court decisions were rightly decided."[9]

Kagan generally gave a variation of this answer when Specter requested her views on Supreme Court decisions:

This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.

As noted earlier, the Solicitor General owes important responsibilities to the Court, one of which is respect for its precedents and for the general principle of stare decisis. I do not think it would comport with this responsibility to state my own views of whether particular Supreme Court decisions were rightly decided. All of these cases are now settled law, and as such, are entitled to my respect as the nominee for Solicitor General. In that position, I would not frequently or lightly ask the Court to reverse one of its precedents, and I certainly would not do so because I thought the case wrongly decided.[10]

Judicial career

Supreme Court of the United States

Supreme Court nomination

Nomination Tracker
 Candidate:Elena Kagan
 Court:Supreme Court of the United States
 Progress:Confirmed 87 days after nomination.
ApprovedANominated:May 10, 2010
ApprovedAABA Rating:Unanimously Well Qualified
ApprovedAHearing:June 28, 2010
ApprovedAReported:July 20, 2010 
ApprovedAConfirmed:August 5, 2010
 Vote: 63-37

Kagan was nominated to the Supreme Court of the United States by President Obama on May 10, 2010 to fill the seat of John Paul Stevens.[11] Obama said "Elena is widely regarded as one of the nation's foremost legal minds".[12]

The American Bar Association rated Kagan as Unanimously Well Qualified.[13]

Remarks by the President and Solicitor General Elena Kagan at the Nomination of Solicitor General Elena Kagan to the Supreme Court Available Here

Judiciary Committee hearing

Kagan's Public Questionnaire Available Here
Kagan's Questions For The Record Available Here

Judge Kagan's confirmation hearings were held from June 28, 2010 to July 2, 2010.[14]

In materials released to the Committee before the hearings, it seemed that Kagan would need to recuse herself from at least six of the 18 cases scheduled before the Supreme Court in the fall of 2010. The recusals would be due to her position as Solicitor General: "I would recuse in all matters for which I was counsel of record" Kagan wrote.[15]

On July 20, 2010, the Senate Judiciary Committee voted 13-6 in favor of Kagan's confirmation.[16] On August 5, 2010, the U.S. Senate voted 63-37 in favor of confirmation.[17]

Confirmation process

Kagan was very critical of aspects of the confirmation process in the past, notably critiquing candidates for failure to be fully candid about their specific values and vision for the court. In a 1995 article, Kagan referred to such hearings as a "vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis."[18] Given Kagan's lack of judicial rulings to refer to in judging her qualifications to the Supreme Court, Linda Greenhouse[19] and the editorial board of the New York Times[20] and Neomi Rao of the Wall Street Journal[21] among others[22] called for Kagan to be as open as possible during her hearings.

During her 2009 Solicitor General confirmation hearings, Kagan was questioned about her 1995 statement. She responded that she no longer feels that way by saying:

This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.

I’m not sure that, sitting here today, I would agree with that statement. The Senate has to get the information that it needs but, as well, the nominee, for any particular position — whether it’s judicial or otherwise, has to be protective of certain kinds of interests.[23]

Judicial experience

Prior to joining the Supreme Court, Kagan had not served as a state or federal judge. At the time of her appointment, every other member of the court was a former federal appeals court judge. The last time a non-judge was appointed to the Supreme Court was in 1972, when Richard Nixon appointed William H. Rehnquist and Lewis Powell.[24]

Of the 111 justices who have served the Supreme Court of the United States, 41 joined it with no prior judicial experience.[25]

Oath of office

Justice Kagan took the Constitutional and Judicial Oaths of Office on August 7, 2010, which were administered by Chief Justice John Roberts. On October 1, 2010, Kagan again received the Judicial Oath as part of a formal investiture ceremony.[26]

Supreme Court opinions

Opinions by year

Below is a table of the number of opinions, concurrences, dissents, and splits (concur in part, dissent in part) that Elena Kagan has issued since joining the Supreme Court according to the data on Cornell University’s Legal Information Institute.[27]

2011 2012 2013
Opinions 7 0 0
Concurrences 0 0 0
Dissents 3 0 0
Concur in part, Dissent in part 0 0 0
Totals 10 0 0

Writing opinions

In November 2013, Laura Ray at Widener University School of Law released a research paper that studied Justice Kagan's writing in her first two years of opinions on the high court. Describing Kagan's writing as "conversational," Ray said:

This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.

[Justice Kagan] employs a range of rhetorical strategies to speak directly to the reader, suggesting that her enterprise is less indoctrination than a more congenial mode of persuasion.[28]

Ray's paper is available for download at this link.

Judicial philosophy

Role of courts

Kagan has spoken or written of her view of how courts should relate to the broader society on several occasions.

Kagan wrote an appreciation of Justice Marshall in 1993. In that publication, she stated:

This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.

...in Justice Marshall’s view, constitutional interpretation demanded, above all else, one thing from the courts: it demanded that the courts show a special solicitude for the despised and disadvantaged. It was the role of the courts, in interpreting the Constitution, to protect the people who went unprotected by every other organ of government—to safeguard the interests of people who had no other champion. The Court existed primarily to fulfill this mission. . . . And however much some recent Justices have sniped at that vision, it remains a thing of glory.[29]
During her confirmation hearings, Senator Specter asked Kagan about her view of the role of the courts and their interaction with the political branches. In part, Kagan responded:

This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.

I think it is a great deal better for the elected branches to take the lead in creating a more just society than for courts to do so.[30]

Military recruitment

Given her position as Dean of Harvard Law School, Kagan commented frequently on the controversy regarding whether to allow military recruiters the same access to students as other employers. As a result of the military’s "don’t-ask-don’t-tell" policy, many universities determined that the military did not comply with their nondiscrimination policies and denied recruiters equal access. In response, Congress passed the Solomon Amendment, which required universities that accepted federal funds to provide military recruiters with such equal access. Many universities challenged the Solomon Amendment, alleging that it violated the First Amendment right to association. Although the Third Circuit agreed with this argument, the Supreme Court unanimously upheld the Solomon Amendment and reinstated the funding condition.[31]

After the Third Circuit invalidated the Solomon Amendment, Kagan prevented the military from recruiting on the Harvard Law School campus for one semester. After the government threatened to withhold campus funds, Kagan allowed the military to return to campus the next semester.[32]

Kagan and many other Harvard Law professors signed an amicus curiae brief filed with the United States Supreme Court. The brief presented a statutory argument; namely, that the Amendment did not require universities to make the military exempt from neutral and generally applicable recruiting rules.[33]

First Amendment

During Kagan’s confirmation hearings to become Solicitor General, Senator Specter referenced a memo she wrote for Justice Marshall about an act that authorized federal funds to religious organizations that provided care for teen pregnancies. [Bowen v. Kendrick, 487 U.S. 589 (1988).] According to the memo, Kagan concluded that it is:

“difficult for any religious organization to participate in such projects without injecting some kind of religious teaching . . . But when the government funding is to be used for projects so close to the central concerns of religion, all religious organizations should be off limits.”

In response to written questions from Senator Sessions regarding this memorandum, Kagan stated that:

"It seems now utterly wrong to me to say that religious organizations generally should be precluded from receiving funds for providing the kinds of services contemplated by the Adolescent Family Life Act . . . . I think it incorrect (or, as I more colorfully said at the hearing, ‘the dumbest thing I ever heard’) essentially to presume that a religious organization will use a grant of this kind in an impermissible manner.”[34]

In answering written questions from Senator Specter regarding obscene speech, Kagan stated:

"The Constitution has never been held to confer a right to engage in obscene speech. To the contrary, the Court long has considered obscenity a category of ‘low value’ speech that is unprotected by the First Amendment . . . . I fully accept this longstanding body of law[.]”[34]

Kagan has authored several publications regarding First Amendment speech issues. [For example, see Elena Kagan, “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine,” 63 U. Chi. L. Rev. 413 (1996).] Two publications explored and advocated “alternative means of regulating some pornography and hate speech, or of alleviating the harms that such speech causes.” [Elena Kagan, “Regulation of Hate Speech and Pornography After R.A.V,” 60 U. Chi. L. Rev. 873 (1993).] Specifically, she endorsed limitations "directed at conduct, rather than speech. They will be efforts using viewpoint-neutral classifications. They will be efforts taking advantage of the long-established unprotected category of obscenity. Such efforts will not eradicate all pornography or all hate speech from our society, but they can achieve much worth achieving."[35]

Second Amendment

During her Solicitor General nomination proceedings, Kagan provided answers to Senator Chuck Grassley regarding her view of District of Columbia v. Heller, 128 S.Ct. 2783 (2008):

"The Supreme Court held in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), that the Second Amendment guarantees an individual right to keep and bear arms. The Court granted this right the same status as other individual rights guaranteed by the Constitution, such as those protected in the First Amendment . . . . I understand the Solicitor General’s obligations to include deep respect for Supreme Court precedents like Heller and for the principle of stare decisis generally. There is no question, after Heller, that the Second Amendment guarantees Americans “the individual right to possess and carry weapons in case of confrontation."[34]

Fourteenth Amendment

In answer to a question from Senator Specter, Kagan stated that she “view[s] as unjust the exclusion of individuals from basic economic, civic, and political opportunities of our society on the basis of race, nationality, sex, religion, and sexual orientation.”[34]

Kagan answered several written questions from Senator Grassley regarding the Supreme Court’s abortion doctrine:

  • "Under prevailing law, the Due Process Clause of the Fourteenth Amendment protects a woman’s right to terminate a pregnancy, subject to various permissible forms of state regulation. See Planned Parenthood v. Casey, 505 U.S. 833 (1992)."
  • "Under prevailing law, the U.S. Constitution does not compel taxpayer funding of abortion. The Court said in Harris v. McRae, 448 U.S. 297, 316 (1980), that ‘it simply does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.’ As Solicitor General, I would owe respect to this law, as I would to general principles of stare decisis."
  • "Under prevailing law, a particular informed-consent or parental involvement law will meet constitutional standards if it does not impose an “undue burden” on a woman’s right to terminate a pregnancy. Planned Parenthood v. Casey, 505 U.S. 833 (1992), upheld informed-consent and parental-consent provisions under this standard. As Solicitor General, I would owe respect to this law, as I would to general principles of stare decisis."[34]

Kagan also responded to a question from Senator Specter regarding whether a constitutional right to abortion funding existed, saying, "...on the assumption that Justice Ginsburg once advocated a constitutional right to funding for abortion, that position has been decisively rejected."[34]

Kagan discussed the intersection of morality and legislation in answering a question from Senator Sessions, saying, "Many laws are grounded in moral and ethical principles and that those principles can provide a rational basis to support such laws."[34]

In answering a question from Senator Cornyn, Kagan stated "[t]here is no federal constitutional right to same-sex marriage."[34]

In answering a question from Senator Specter, Kagan also addressed the constitutional aspects of government welfare programs: “The Constitution has never been held to confer a right to a minimum level of welfare . . . .This determination comported with this nation’s traditional understanding that the Constitution generally imposes limitations on government rather than establishes affirmative rights and thus has what might be thought of as a libertarian slant. I fully accept this traditional understanding[.]"[34]

Guantanamo detainees

On November 14, 2005, Kagan signed a letter urging the Senate to remove an amendment that purported to strip federal courts of jurisdiction to hear habeas claims from detainees held at Guantanamo Bay.[36] Among other things, the letter stated, “[w]hen dictatorships have passed laws stripping their courts of power to review executive detention or punishment of prisoners, our government has rightly challenged such acts as fundamentally lawless. The same standard should apply to our own government.” [Id.]

Separation of Powers

In response to questions from Senator Specter regarding how she would consider executive actions, such as those relating to the Foreign Intelligence Surveillance Act, Kagan quoted Justice Jackson’s three-pronged concurrence from Youngstown Sheet & Tube Co. v. Sawyer[, 343 U.S. 579 (1952).] Regarding the third situation—when the President acts against the will of Congress—Kagan noted that “on some occasions, as Justice Jackson recognizes, Congress is indeed ‘disabl[ed]’ from acting upon a subject. But these occasions are rare and cannot be created or justified merely by a general invocation of the commander-in-chief power."[34]

In 2001, Kagan wrote an article that largely praised “the presidentialization of administration—the emergence of enhanced methods of presidential control over the regulatory state.” In her article, she stated that, “within broad but certain limits,” such an approach “both satisfies legal requirements and promotes the values of administrative accountability and effectiveness.”[37]

Statutory interpretation

In response to written confirmation questions from Senator Specter regarding her approach to statutory interpretation, Kagan stated:

  • "By far the best way of determining Congressional intent in cases of statutory interpretation is to look at what Congress intended – not what either the President or foreign law says about the language in dispute. There may be exceptional occasions when non-Congressional sources can provide clues to meaning – for example, when Congress itself has indicated that it is looking to foreign law or when a Presidential signing statement makes note of a particular piece of legislative history. In general, however, such sources have far less weight than the actual language of the statutory provision in question and the legislative history (if any) surrounding it."[34]
  • At least some members of the Court find foreign law relevant in at least some contexts. When this is the case, I think the Solicitor General’s office should offer reasonable foreign law arguments to attract these Justices’ support for the positions that the office is taking. Even the Justices most sympathetic to the use of foreign law would agree that the degree of its relevance depends on the constitutional provision at issue."[34]

Agency deference

Kagan is the co-author of a publication that recommends adjusting the scrutiny of judicial review of agency action to encourage the agency to shape its policymaking processes.[38]

See also

External links

Academic publications


  1. Gavel Grab, "Kagan Sworn in as Supreme Court Justice," August 7, 2010
  2. 2.0 2.1 2.2 Kagan Profile from the Federal Judicial Center.
  3. MSNBC, "NBC: Obama to name Kagan for high court," May 10, 2010
  4. New York Times Obituaries "Robert Kagan, 67, Lawyer for Tenants," July 25, 1994
  5. Associated Press "Kagan's remarks on her Supreme Court nomination," May 10, 2010
  6. "THOMAS" Nomination of '"Elena Kagan May 20, 2009Search for Elana Kagan
  7. Elena Kagan Public Questionnaire from Solicitor General nomination process, 2009
  8. New York Sun, "Summers Manages Low Profile While Advising Senator Obama; Some Women Warn Democrat About Former Harvard President," January 5, 2009
  9. Transcript of Specter's questions and comments during Kagan nomination hearings
  10. Kagan's answers to Specter during Solicitor General nomination process
  11. The White House Blog "One of the Nation's Leading Legal Minds: The President Nominates Elena Kagan for the Supreme Court'," May 10, 2010
  12. Fox News.com "Obama Nominates Kagan for Supreme Court," May 10, 2010
  13. Judicial Nomination Materials: 111th Congress
  14. The Washington Post "Elena Kagan confirmation hearings to begin June 28," May 19, 2010
  15. The Washington Post "Kagan releases cartons of documents to Senate Judiciary Committee," May 18, 2010
  16. CNN.com, "Senate Judiciary Committee approves Kagan nomination," July 20, 2010
  17. NPR.org, "Senate Confirms Kagan To Supreme Court," August 5, 2010
  18. Elena Kagan "Confirmation Messes, Old and New," The University of Chicago Law Review, Vol. 62, No. 2, p. 24 (Spring, 1995)
  19. New York Times:Opinionator Linda Greehouse "Just Answer the Question," May 10, 2010
  20. New York Times "Searching for Elena Kagan," May 10, 2010
  21. Wall Street Journal "Elena Kagan and the 'Hollow Charade'," May 11, 2010
  22. Gavel Grab "Revisiting What Kagan Labeled the Confirmation ‘Charade’," May 11, 2010
  23. The Daily Caller "Elena Kagan no longer thinks Supreme Court nominees should have to answer direct questions," May 10, 2010
  24. Washington Post, "Elena Kagan said to be Obama's Supreme Court pick," May 10, 2010
  25. National Public Radio "Having Judged Not, How Will Kagan Be Judged?," May 10, 2010
  26. Supreme Court of the United States, Oaths of Office Taken by the Current Court Retrieved on 9/3/2013
  27. Cornell University, "WRITINGS BY JUSTICE KAGAN," accessed April 2, 2014
  28. The Wall Street Journal, "The 'Remarkably Conversational' Style of Elena Kagan," November 19, 2013
  29. Elena Kagan, “For Justice Marshall,” 71 Tex. L. Rev. 1125 (1993).
  30. Statements of Kagan during Solicitor General nomination process
  31. FAIR v. Rumsfeld
  32. Military recruitment at Harvard
  33. The Harvard FAIR amicus
  34. 34.00 34.01 34.02 34.03 34.04 34.05 34.06 34.07 34.08 34.09 34.10 34.11 Kagan statements during Solicitor General nomination process
  35. Kagan, Elena. "The Changing Faces of First Amendment Neutrality: R.A.V. v St. Paul, Rust v Sullivan, and the Problem of Content-Based Underinclusion," 1992 Sup. Ct. Rev. 29 (1992).
  36. Kagan Question 13C at 29
  37. Elena Kagan, “Presidential Administration,” 114 Harvard L. Rev. 2245 (2001).
  38. Elena Kagan & David Barron. “Chevron’s Nondelegation Doctrine,” 2001 Sup. Ct. Rev. 201 (2001).
  39. 114 Harv. L. Rev. 2245
  40. 2001 Sup. Ct. Rev. 201
  41. 29 U.C. Davis L. Rev. 957
  42. 63 U. Chi. L. Rev. 413
  43. 60 U. Chi. L. Rev. 873
  44. 71 Tex. L. Rev. 1125
Federal judicial offices
Preceded by:
John Paul Stevens
Supreme Court
Seat #5
Succeeded by: