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Elena Kagan

Elena Kagan (/ˈkɡən/ KAY-guhn; born April 28, 1960) is an American lawyer who serves as an associate justice of the Supreme Court of the United States. She was appointed in 2010 by President Barack Obama and is the fourth woman to serve on the Court.

This article is about the U.S. Supreme Court justice. For the Russian writer with the same birth name, see Elena Rzhevskaya.

Elena Kagan

Neal Katyal[1] (acting)

(1960-04-28) April 28, 1960
New York City, U.S.

Cursive signature in ink

Kagan was born and raised in New York City. After graduating from Princeton University, Worcester College, 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 a 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.


In 2009, Kagan became the first female solicitor general of the United States.[6] The following year, 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 63–37. As of 2022, she is the most recent justice appointed without any prior judicial experience. She is considered part of the Court's liberal wing. She has written the majority opinion in some landmark cases, such as Cooper v. Harris, Chiafalo v. Washington, and Kisor v. Wilkie, as well as several notable dissenting opinions, such as in Rucho v. Common Cause, West Virginia v. EPA, Brnovich v. DNC, Janus v. AFSCME, and Seila Law v. CFPB.

Career

Early career

After law school, Kagan was a law clerk for judge Abner J. Mikva of the U.S. Court of Appeals for the District of Columbia Circuit from 1987 to 1988. She became one of Mikva's favorite clerks; he called her "the pick of the litter".[34] From 1988 to 1989, 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.[35] Marshall nicknamed the 5-foot-3-inch (1.60-metre) Kagan "Shorty".[13]


From 1989 to 1991, Kagan was in private practice at the Washington, D.C., law firm Williams & Connolly.[36] As a junior associate, she drafted briefs and conducted discovery.[37] During her short time at the firm, she handled five lawsuits that involved First Amendment or media law issues and libel issues.[38]


In 1991, Kagan became an assistant professor at the University of Chicago Law School.[39] While there she first met Barack Obama, a guest lecturer at the school.[40][41] While on the faculty there, 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;[42] an article discussing the significance of governmental motive in regulating speech;[43] and a review of a book by Stephen L. Carter discussing the judicial confirmation process.[44] 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.[45]


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.[46]


Kagan became a tenured professor of law in 1995.[39] According to her colleagues, Kagan's students complimented and admired her from the beginning, and she was granted tenure "despite the reservations of some colleagues who thought she had not published enough".[13]

Writing style

In her first term on the Court, Kagan did not write any separate opinions, and wrote the fewest opinions of any justice. She wrote only majority opinions or dissents that more senior justices assigned to her, and in which she and a group of justices agreed upon a rationale for deciding the case. This tendency to write for a group rather than herself made it difficult to discern her own views or where she might lean in future cases.[130] She wrote the fewest opinions for the terms from 2011 through 2014, tying with Kennedy in 2011 and 2013.[131]


Kagan's writing has been characterized as conversational, employing a range of rhetorical styles.[132] She has said that she approaches writing on the Court like she used to approach the classroom, with numerous strategies to engage the reader.[133] Her opinions use examples and analogies to make them more accessible to a broad audience.[130][134] In one such opinion, Kagan wrote for the majority in Kimble v. Marvel Entertainment, LLC, a 6–3 decision in favor of Marvel, holding that a patentee cannot receive royalties after the patent expires.[135] In doing so, she included several references to Spider-Man.[136][137]

Jurisprudence

Ideologically, Kagan is part of the Supreme Court's liberal wing:[138][139][140] she voted with the liberal bloc in King v. Burwell, 576 U.S. 988 (2015), finding that Obamacare's subsidies and individual mandate are constitutional, and in Obergefell v. Hodges, 576 U.S. 644 (2015), which prohibits states from banning same-sex marriage.[141] In 2018, Slate observed that Kagan had crossed ideological lines on multiple cases during the preceding term, and considered her part of a centrist bloc, along with Roberts, Stephen Breyer, and Anthony Kennedy.[142] Still, FiveThirtyEight observed that Kagan voted with her more liberal peers, Ginsburg and Sotomayor, over 90% of the time.[143] Also during the 2017–18 term, Kagan most commonly agreed with Breyer; they voted together in 93% of cases. She agreed least often with Samuel Alito, in 58.82% of cases.[144]


Kagan was the circuit justice, the justice responsible for handling emergency requests, for the Sixth and Seventh Circuits.[145] After Brett Kavanaugh's confirmation, she was assigned to the Ninth Circuit, the largest circuit court by area. It includes Alaska, Arizona, California, Guam, Hawaii, Idaho, Oregon, Montana, Nevada, the Northern Mariana Islands, and Washington state.[146][145]

Personal life

Kagan has never married. During her confirmation, a photo of her playing softball, which is sometimes characterized in popular culture as unfeminine, led to unsubstantiated claims that Kagan was a lesbian.[153] Her friends have criticized the rumors. Kagan's law school roommate Sarah Walzer said, "I've known her for most of her adult life and I know she's straight."[154]


Kagan's Harvard colleagues and friends have characterized her as a good conversationalist, warm, with a good sense of humor.[155] Before joining the Supreme Court, she was known to play poker and smoke cigars.[155][156]


Early in her tenure as a justice, Kagan began socializing with several of her new colleagues.[157] She attended the opera with Ruth Bader Ginsburg, had dinner with Sonia Sotomayor, attended legal events with Anthony Kennedy and Clarence Thomas, and went hunting with Antonin Scalia.[157] The hunting trips stemmed from a promise Kagan made to U.S. Senator Jim 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 initially offered to go hunting with Risch before promising instead to go hunting with Scalia if confirmed. According to Kagan, Scalia laughed when she told him of the promise and took her to his hunting club for the first of several hunting trips.[158] Kagan is known to spend time with longtime friends from law school and her stint in the Clinton administration rather than attending Washington, D.C., social events she is invited to as a justice.[157]

Kagan, Elena (1992). . Supreme Court Review. 1992: 29–77. doi:10.1086/scr.1992.3109667.

"The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion"

Kagan, Elena (1993). . University of Chicago Law Review. 60 (3/4): 873–902. doi:10.2307/1600159. JSTOR 1600159.

"Regulation of Hate Speech and Pornography After R.A.V."

Kagan, Elena (1995). . University of Chicago Law Review. 62 (2): 919–42. doi:10.2307/1600153. JSTOR 1600153.

"Confirmation Messes, Old and New"

Kagan, Elena (1996). . University of Chicago Law Review. 63 (2): 413–517. doi:10.2307/1600235. JSTOR 1600235.

"Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine"

Kagan, Elena (2001). . Harvard Law Review. 114 (8): 2245–2385. doi:10.2307/1342513. JSTOR 1342513.

"Presidential Administration"

; Kagan, Elena (2001). "Chevron's Nondelegation Doctrine". Supreme Court Review. 2001: 201–65. doi:10.1086/scr.2001.3109689.

Barron, David J.

Barack Obama Supreme Court candidates

Bill Clinton judicial appointment controversies

Demographics of the Supreme Court of the United States

List of Jewish American jurists

List of law clerks of the Supreme Court of the United States (Seat 4)

List of law clerks of the Supreme Court of the United States (Seat 10)

at the Biographical Directory of Federal Judges, a publication of the Federal Judicial Center.

Elena Kagan

at Ballotpedia

Elena Kagan

at OnTheIssues

Issue positions and quotes

– slideshow by ABC News

Elena Kagan Through the Years

on C-SPAN

Appearances

United States Government Publishing Office

Supreme Court Associate Justice Nomination Hearing on Elena Kagan in July 2010