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 byBarack Obama
Preceded byJohn Paul Stevens
45th Solicitor General of the United States
In office
March 19, 2009 – May 17, 2010
PresidentBarack Obama
DeputyNeal Katyal[1]
Preceded byEdwin Kneedler[2] Acting
Succeeded byNeal Katyal[1] Acting
11th Dean of Harvard Law School
In office
July 1, 2003 – March 19, 2009
Preceded byRobert Clark
Succeeded byMartha Minow[3]
Deputy Assistant to the President for Domestic Policy
In office
1997–2000
PresidentBill Clinton
Preceded byJeremy Ben-Ami[4]
Succeeded byEric Liu[5]
Personal details
Born (1960-04-28) April 28, 1960 (age 58)
New York City, New York, U.S.
Political partyDemocratic
EducationPrinceton 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.

Kagan was born and raised in New York City. After attending Princeton University, University of Oxford, and Harvard Law School, she clerked for a federal Court of Appeals judge and 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.

In 2009, Kagan became the first female Solicitor General of the United States. President Barack Obama nominated her to the Supreme Court to fill the vacancy arising from the impending retirement of Justice John Paul Stevens. Confirmed by the United States Senate by a vote of 63 to 37. She is considered part of the Court's liberal wing, although she does tend 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.

Early life[edit]

Kagan was born in Manhattan, the middle of three children.[7] Her father, Robert Kagan, was an attorney who represented tenants trying to remain in their homes and her mother, Gloria (Gittelman) Kagan, taught at Hunter College Elementary School.[8][9] Both of Kagan's parents were the children of Russian immigrants.[9] Kagan has two brothers, older brother Marc and younger brother Irving.[10] The family lived in an apartment on the Upper West Side of Manhattan.[9]

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, clashed with her Orthodox rabbi 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," said her father's colleague.[13] Kagan and the rabbi negotiated a satisfactory solution. Kagan's rabbi, Shlomo 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," said Riskin.[12] Kagan asked to read from the Torah on a Saturday morning but ultimately read from the Book of Ruth on a Friday night.[12] As an adult she identifies as a Conservative Judaism.[12]

Childhood friend Margaret Raymond recalled that Kagan 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 re-read Jane Austen's Pride and Prejudice every year.[11] In her Hunter College High School yearbook of 1977, Kagan is pictured in a judge's robe and holding a gavel.[14] Next to her photo is a quote from former Supreme Court Justice Felix Frankfurter: "Government is itself an art, one of the subtlest of arts."[15]

Education[edit]

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 the city. Kagan managed to emerge as one of the school's more outstanding students.[16] While attending Hunter, she was elected president of the student government and served on a student-faculty consultative committee.[17] After graduating from high school, 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 insists 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,[a] Kagan penned the "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 editorials in The Daily Princetonian, Kagan was politically restrained in her dealings with fellow reporters. Steven Bernstein, Kagan's colleague on The Daily Princetonian "can not recall a time in which Kagan expressed her political views".[24] Bernstein 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.

In 1980, Kagan received Princeton's Daniel M. Sachs Class of 1960 Graduating Scholarship,[b] one of the highest general awards conferred by the university. This enabled her to study at Worcester College, Oxford. As part of her graduation requirement, Kagan wrote a thesis on "The Development and Erosion of the American Exclusionary Rule: A Study in Judicial Method". This thesis 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]

At 23, she entered Harvard Law School in 1983. Her adjustment to the atmosphere of Harvard was rocky, she received the worst grades of her entire law school career in her first semester. Kagan would go on to earn an A grade 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] She received a Juris Doctor, magna cum laude, at Harvard Law School in 1986, where she was supervisory editor of the Harvard Law Review.[30][31] Friend Jeffrey Toobin recalled 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[edit]

Kagan was a law clerk for Judge Abner J. Mikva of the United States Court of Appeals for the District of Columbia Circuit in 1987. She emerged as one of Mikva's favorite clerks; he called Kagan "the pick of the litter".[33] She also clerked for Justice Thurgood Marshall of the U.S. Supreme Court in 1988 ending the clerkship at the end of the year. Justice Marshall hired Kagan to help him put the spark back in his legal decisions because the court was undergoing a shift to the more conservative Rehnquist Court, which began in 1986.[34] Marshall nicknamed the 5 ft 3 in (1.60 m) Kagan "Shorty".[11] She later entered private practice as an associate at the Washington, D.C., law firm of Williams & Connolly.[6] As a junior associate, Kagan drafted briefs and conducted discovery, which meant looking at evidence in preparation for trial.[35] During her short time at Williams & Connolly, she handled five lawsuits that involved First Amendment or media law issues and libel issues.[36]

Kagan joined the faculty of the University of Chicago Law School as an assistant professor in 1991.[37] It was during her time at the University of Chicago Law School that Kagan first met Barack Obama who became a lecturer at the school in 1992.[38][39] While on the 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[edit]

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 1995–1996, when her mentor Judge Mikva served as White House Counsel. Kagan worked on controversial issues that plagued the Clinton White House such as the Whitewater controversy, White House travel office controversy, and Clinton v. Jones.[45] From 1997–1999 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 cataloged in the Clinton Library.[46] Kagan co-authored 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 had taken senior status in 1996. The Senate Judiciary Committee's Republican Chairman Orrin Hatch scheduled no hearing, effectively ending her nomination. When Clinton's term ended, her nomination to the D.C. Circuit Court lapsed, as did the nomination of fellow Clinton nominee Allen Snyder.[48][49]

Return to academia[edit]

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 Law School. However, she had given up her tenured position during her extended stint in the Clinton Administration. Thus, she needed to be rehired, and the school chose not to do so; 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, including the role of aiding the President of the United States in formulating and influencing federal administrative and regulatory law, which was honored as the year's top scholarly article by the American Bar Association's Section on Administrative Law and Regulatory Practice, and is being developed into a book to be published by Harvard University Press.[51]

Kagan as Dean of Harvard Law School in 2008

In 2001, she was named a full professor and in 2003 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 employing a consensus-building leadership style, which surmounted the school's previous ideological discord.[53][54][55]

Kagan's official portrait as Dean of Harvard Law School

In her capacity 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 broke a logjam on conservative hires by bringing in scholars such as Jack Goldsmith, who had served in the Bush administration.[54]

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-centric.[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.[59][60]

In October 2003, Kagan sent an e-mail to students and faculty deploring that military recruiters had shown up on campus in violation of the school's anti-discrimination policy. It read, "This action causes me deep distress. I abhor the military's discriminatory recruitment policy". She also wrote that it was "a profound wrong—a moral injustice of the first order".[61]

From 2005 through 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 in 2008.[62]

By early 2007, Kagan was a finalist for the presidency of Harvard University as a whole after Lawrence Summers' resignation the previous year but lost to Drew Gilpin Faust. She was reportedly disappointed not to be chosen, and supportive law school students threw her a party to express their appreciation for her leadership.[63]

Solicitor General[edit]

On January 5, 2009, President-elect Barack Obama announced he would nominate Kagan to be Solicitor General.[64][65] Before this appointment she had never argued a case before any court.[66] At least two previous solicitors general, Robert Bork and Kenneth Starr, had no previous Supreme Court appearances, though Starr was a judge on the United States Court of Appeals for the District of Columbia Circuit before becoming Solicitor General.[67]

The two main issues senators had with Kagan during confirmation hearings were: 1. Would Kagan defend statutes that she personally opposed? and 2. Was she qualified to hold the position of solicitor general given her lack of courtroom experience?[68] Kagan testified 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".[69] Kagan was confirmed by the U.S. Senate on March 19, 2009, by a vote of 61 to 31,[70] becoming the first woman to hold the position.[71] Upon taking office, Kagan pledged to defend any statute as long as there is a colorable (plausible) argument to be made, even though she might not personally agree with the policy she was obligated to defend.[68] 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.[71][44] Thus, the arguments Kagan made as Solicitor General were not necessarily indicative of her personal beliefs.[71]

She made her first appearance before the Supreme Court 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).[72] During argument, Kagan asked the Supreme Court to uphold a 1990 precedent that the government could restrict corporations from using their treasuries to campaign for or against political candidates, or in the alternative, for the Court to keep its ruling narrowly focused on corporations that resembled Citizens United instead of reconsidering prior cases which allowed for restrictions on some corporate campaign finance.[72][73][74] The Supreme Court reversed laws on how much corporations could spend on elections, a major defeat for the Obama administration.[75]

During her 15 months as solicitor general, Kagan argued only six cases before the Supreme Court.[76] She helped win four cases: Salazar v. Buono, 59 U.S. 700 (2010) United States v. Comstock, 560 U.S. 126 (2010), and Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010).[77] Another case she argued as solicitor general was Robertson v. United States ex rel. Watson, 560 U.S. 272 (2010) which was decided by a per curiam opinion.[78] The Washington Post described her style during argument as "confident" and "conversational".[71]

Supreme Court[edit]

Nomination[edit]

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

Before President Barack Obama's election, Kagan was the subject of media speculation regarding her potential to be nominated to the Supreme Court of the United States if a Democratic president were elected in 2008.[79] Obama had his first Supreme Court vacancy to fill in 2009 with the retirement announcement of Associate Justice David H. Souter.[80] Senior adviser to Obama, David Axelrod, later recounted during this search for a new justice, Antonin Scalia had told him he hoped Obama would nominate Kagan because of her intelligence.[81] On May 13, 2009, the Associated Press reported that Obama was considering Kagan, among others, for possible appointment to the United States Supreme Court.[82] On May 26, 2009, however, Obama announced that he was nominating Sonia Sotomayor to the post.[83]

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

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.[84] In a Fresh Dialogues interview, Jeffrey Toobin, a Supreme Court analyst and Kagan's friend and law school classmate,[85] speculated that she would likely be President Obama's nominee, describing her as "very much an Obama type person, a moderate Democrat, a consensus builder".[86] This possibility alarmed some liberals and progressives, who worried that "replacing Stevens with Kagan risks moving the Court to the right, perhaps substantially to the right".[87]

While Kagan's name was mentioned as a possible replacement for Justice Stevens, The New York Times noted she "has supported assertions of executive power".[88] This view of vast executive power caused some commentators to fear she would reverse the majority on the Supreme Court in favor of protecting civil liberties were she to replace Stevens.[89]

On May 10, 2010, Obama nominated Kagan to the Supreme Court to fill the vacancy left by Justice Stevens.[90] The deans of over one-third of the country's law schools, sixty-nine people in total, endorsed Kagan's nomination in an open letter in early June. It lauded what it considered her coalition-building skills and "understanding of both doctrine and policy" as well as her written record of legal analysis.[91]

Kagan, Obama, and Roberts before her investiture ceremony

Confirmation hearings[edit]

The confirmation hearings began June 28.[92] As the hearings began, Kagan was heavily expected to be confirmed, with Republican Senator John Cornyn calling Kagan "justice-to-be".[93] During the hearings, Kagan demonstrated a deep knowledge of Supreme Court cases, expanding upon cases Senators mentioned in their questions to her, and doing so without taking notes. A number of Democratic senators criticized recent decisions of the court as "activist," but Kagan avoided joining in their criticisms.[94] Like many prior nominees, including Chief Justice John Roberts, Kagan declined to answer whether she thought particular cases were rightly decided or how she would rule on particular issues.[94][95] Republican Senator John Kyl and Democratic Senator Arlen Specter[c] criticized such evasiveness.[95] For Specter, that evasiveness obscured the way justices actually ruled once on the Court, and he noted that Kagan published an article in the Chicago Law Review in 1995 in which she criticized the evasiveness she came to practice.[97][93] Republican Senators criticized Kagan's background as more political than judicial. Kagan responded to such criticism with promises she would be impartial and fair.[92] 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.[98] 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.[99] She was sworn in by Chief Justice Roberts on Saturday, August 7, in a private ceremony.[100][99]

Kagan is the first justice appointed without any prior experience as a judge since William Rehnquist in 1972.[101][102][103] She is the fourth female justice in the Court's history (and, for the first time, part of a Court with three female justices) and the eighth Jewish justice,[104] making three of the then-nine justices Jewish.[105]

Tenure as Justice[edit]

Elena Kagan, as a nominee to the Supreme Court met with Senator Jeanne Shaheen

Ideologically, Kagan is part of the Supreme Court's liberal wing:[106][107][108] Kagan voted with the liberal block to King v. Burwell, 576 U.S. 14-114 (2015), finding subsidies and the individual mandate in Obamacare were Constitutional, and in Obergefell v. Hodges,576 U.S. 14-556 (2015), which legalized same sex-marriage in all 50 states [109] In 2018, Slate observed Kagan had crossed ideological lines on multiple cases during the proceeding term, and considered her to be part of a centrist block along with Justice Steven Breyer, Anthony Kennedy, and Chief Justice Roberts.[110] Still, FiveThirtyEight observed that Kagan voted with her more liberal peers, Ginsburg and Sotomayor, over 90% of the time.[111] During that term, Kagan most commonly agreed with Justice Stephen Breyer, voting together in 93% of cases, and agreed with Justice Samuel Alito least often, voting together 58.82% of the time.[112]

Having acted as Solicitor General before her nomination to the Supreme Court, Kagan recused herself from many cases to avoid conflicts of interests during her first year on the court. In her first term, she recused herself from 28 out of the 78 cases heard.[113] More recently, Kagan recused from the immigrant-detention case Jennings v. Rodriguez in 2017 because she authorized a filing in the case when she was Solicitor General.[114]

Jurisprudence[edit]

Kagan's first opinion as a justice, Ransom v. FIA Card Services, involved the issue of 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 precluded a debtor from taking an allowance for car related expenses where the debtor owned the car outright and did not make monthly loan or lease payments. Kagan 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, Kagan 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[edit]

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, Kagan took issue with the majority's creation of an exception to the Establishment Clause of the First Amendment.[120] The majority held that Arizona tax payers could not challenge tax credits for those who donate to groups that provide scholarships to religious schools, drawing a distinction between the way the court treated tax credits and grants.[120][121] Kagan deemed this distinction "arbitrary" as tax credits and grants could be used to achieve the same objectives. She viewed the majority's decision as creating a loophole for governments to fund religion.[120]

Roberts, Breyer, Kagan, and Gorsuch at the 2018 State of the Union

In another Establishment Clause case, Town of Greece v. Galloway, 572 U.S. 12-696 (2014), Kagan wrote a dissent arguing that a town's prayer at a counsel meeting failed to treat all Americans the same no matter what religion they practice.[122] Greece involved a town in New York inviting chaplains, for several years all Christian, to give a prayer before town counsel meetings.[123] Unlike Marsh v. Chambers, 463 U.S. 783 (1983), where the Supreme Court had upheld a state legislature opening with a prayer, Kagan noted the board in Greece was forum for ordinary citizens.[124] For Kagan, the use of prayer showed a preference for a particular religion and violated the First Amendment Rights of Americans interacting with their government.[124]

Sixth Amendment[edit]

Kagan dissented in Luis v. United States, 578 U.S. 14-419 (2016), where the five justice majority held that the freezing of untainted assets, those not traced back to criminal activity, pre-trial was a violation of a defendant's sixth amendment right to counsel where those assets were needed to retain counsel of the defendant's choosing.[125] 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' assets, which Luis said she needed to pay legal bills, after she had already spent most of the $45 million from the alleged scheme.[126] A prior Supreme Court case, United States v. Monsanto, 491 U.S. 600 (1989), held that a court could freeze a defendant's assets, including funds obtained through the alleged sale of drugs, pretrial even where those assets were being used to hire an attorney.[127] The majority sought to distinguish their holding in Luis from Monsanto based upon the nature of the funds being frozen pretrial; Luis' funds were not directly linked to her crime whereas Mosanto's funds were.[125][127] Kennedy dissented in Luis because he did not think criminal defendants should be treated differently based on how quickly they spent their illegal proceeds; he did not think it was right to spare the criminal defendant who spends their ill-gotten gains quickly while punishing another criminal defendant who spends legal money first. Kagan agreed with Kennedy that the court's decision created inequity and drew an arbitrary distinction, however, Kagan went further to opine that Monsanto may have been wrongfully decided.[127] 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.[125][127][126] Thus, Kagan's vote 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 showing of probable cause that the property will ultimately be subject to forfeiture.[127]

Gerrymandering[edit]

Kagan wrote for the majority in Cooper v. Harris, 581 U.S. 15-1262 (2017), striking down two of North Carolina's congressional districts.[128] The Court held the districts were unconstitutional because they relied on race and did not pass the strict scrutiny standard of review.[129][130][131] In a footnote, Kagan sets forth a new principle, that is congressional districts where race is the predominant factor may be found to be an unlawful racial gerrymander, even if they have another ultimate goal, such as sorting voters by political affiliation.[130] 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.[129] The strengthening of the number of black voters within District 1 resulted in weakening the strength of black voters elsewhere in the state.[131] The Court also struck down District 12, although by a vote of 5–3, for similar shifts in the racial composition of the district. The dissent did not believe those challenging the validity of the districts had proven that race, not politics, caused the change in District 12.[129] Kagan quoted court precedent that race must only be a predominate consideration, and challengers did not need to prove politics was not a motivating factor.[129][130]

Writing style[edit]

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 only wrote 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 determine her own unique nuanced views or where she might lean in future cases.[132] She wrote the fewest opinions for the terms from 2011 through 2014, tying with Kennedy for the 2011 and 2013 terms.[133]

Kagan's writing style has been characterized as conversational, employing a range of rhetorical strategies to engage the reader.[134] She has said that she approaches writing on the court like she used to approach the classroom, with numerous strategies of engagement between author and reader.[135] Her opinions use examples and analogies to make them more understandable to a broad audience.[132][136]

Other activities[edit]

Kagan, like other justices, makes public appearances when not hearing cases at the Court.[137] In her first four years on the court, Kagan made at least 20 public appearances.[138] Kagan tends to choose speaking engagements that allow her to speak to students.[137]

In October 2010, the four women to have served as justices on the United States Supreme Court: O'Connor, Sotomayor, Ginsburg, and Kagan

Time magazine named Kagan one of its Time 100 most influential people for 2013. Former Supreme Court Justice Sandra Day O'Connor penned the article on Kagan, praising her as "an incisive legal thinker" and "excellent communicator".[139] That same year, a painting featuring the four women to have served as justices on the United States Supreme Court, Kagan, Sotomayor, Ginsburg, and O'Connor, was unveiled at the National Portrait Gallery in Washington, D.C. According to the Smithsonian at the time, the painting was on loan to the museum for three years.[140] In 2018, Kagan received the Marshall-Wythe Medallionan from William & Mary Law School,[141] and an honorary degree of Doctor of Humane Letters from Hunter College.[142]

Personal life[edit]

Kagan's Harvard colleagues and friends characterized Kagan as a good conversationalist, warm, and having a good sense of humor.[143] Before joining the Supreme Court, she was known to play poker and smoke cigars.[143][144] Early on in her tenure as a justice, Kagan began socializing with several of her new Court colleagues.[145] She attended the Opera with Ginsburg, dinner with Sotomayor, attending legal events with Kennedy and Clarence Thomas, and hunting with Scalia.[145] The hunting trips with Scalia stemmed from a promise Kagan made to the Senator during a meeting prior to her confirmation to the Supreme Court. Senator James Risch of Idaho expressed concern that New York City native Kagan did not understand the importance of hunting to his constituents. Kagan offered to go hunting with the Senator 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.[146] Kagan is known to spend time with longtime friends from law school and from her stint working in the Clinton Administration rather than DC social events she is invited to as a justice.[145] Kagan has never married and does not have children.[147]

See also[edit]

Notes[edit]

  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. ^ 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.[96]

References[edit]

  1. ^ a b Goldstein, Tom (August 13, 2010). "Anticipating the next Solicitor General". SCOTUSblog. Archived from the original on December 16, 2018. Retrieved December 12, 2018.
  2. ^ Markon, Jerry (July 31, 2010). "Edwin Kneedler a 'savvy' choice to argue suit against Ariz. immigration law". The Washington Post. Archived from the original on August 19, 2018. Retrieved December 12, 2018.
  3. ^ Ryan, Greg (January 3, 2017). "Harvard Law dean to step down from post". Biz Women. Archived from the original on January 8, 2017. Retrieved December 12, 2018.
  4. ^ Warshaw, Shirley Anne (2013). Guide to the White House Staff. CQ Press. p. 445. Retrieved December 12, 2018.
  5. ^ Warshaw, Shirley Anne (2013). Guide to the White House Staff. CQ Press. p. 458. Retrieved December 12, 2018.
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Sources[edit]

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