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Elena Kagan

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Elena Kagan
Elena Kagan.jpg
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:   4/28/1960
Hometown:   New York, NY
Undergraduate:   Princeton University, 1981
Law School:   Harvard Law School, 1986
Grad. School:   Worcester College, Oxford, 1983

Elena Kagan is the 112th associate justice of the Supreme Court of the United States. She received her commission on August 7, 2010, after her nomination by President Barack Obama. At the time of her appointment, she was the United States solicitor general.[1][2]

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

Judicial philosophy

The website Supreme Court Review wrote of Elena Kagan's jurisprudence:

As a Supreme Court justice, Kagan has been compared to Justice Scalia because of her quick wit, strong writing and aggressive questioning at oral arguments. Justice Kagan, however, has a unique style and is praised for being the justice most in touch with new technology and popular culture. At oral arguments on the sale of violent video games, Justice Kagan asked whether the statute would prohibit "Mortal Combat," [sic] a video game she considered to be "iconic." Justice Scalia interjected, "I don't know what she's talking about." At oral arguments on the FCC's indecency policy, Kagan expressed that she didn't see much of a difference between broadcast television, which is subject to the FCC's indecency policy, and basic cable, which is not subject to the policy.[4][5]

Supreme Court Review

Her writing style has been described as accessible, filled with metaphors and witticisms and similar to Justice Antonin Scalia's. However, Kagan's style tends to be more inclusive and consensus-building than Scalia's.[6]

The Supreme Court Review touched on this:

So far Justice Kagan has been one of the Court's least prolific writer of opinions. She has authored only one lone dissent (a dissent in part in Messerschmidt v. Millender) and rarely authors concurring opinions. Many of Justice Kagan's supporters in the past have praised her for being a consensus builder. Some opine that she may be concerned more with building majorities than expressing her own opinions in cases. Her opinions are often joined by members of both the liberal and conservative arms of the Court. In the 2011 Term, Justice Kagan authored more unanimous opinions than any other justice.[4][5]

Supreme Court Review

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

[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.[7][5]

Early life and education

Elena Kagan was born in New York City in 1960 and lived there through her childhood. Kagan earned her A.B. at Princeton University in 1981. She went on to earn a master's in philosophy from Worcester College at the University of Oxford in 1983. Three years after earning her master's, she received her J.D. from Harvard Law School.[8][9]

Professional career

Kagan was the first female dean of Harvard Law, and she was also the first female solicitor general. 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 United States Court of Appeals for the Third Circuit agreed with this argument, the Supreme Court unanimously upheld the Solomon Amendment and reinstated the funding condition.[11][12]

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. Kagan and many other Harvard Law professors signed an amicus curiae brief filed with the Supreme Court of the United States. 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.[13][14]

Solicitor general nomination

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

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 President Barack Obama on January 5, 2009, and confirmed by the Senate on March 19, 2009. Kagan was confirmed by the Senate on a supermajority 61-31 vote, with eight senators abstaining.[2][15]

During the hearings regarding her nomination as 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."[16]

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

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.[17][5]

Supreme Court of the United States

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.[18]

Of the 111 justices who have served the Supreme Court of the United States, 41 joined with no prior judicial experience.[19]

Nomination and confirmation

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


Elena Kagan was nominated to the Supreme Court of the United States by President Barack Obama on May 10, 2010, to fill the seat of John Paul Stevens. Obama said of Kagan, "Elena is widely regarded as one of the nation's foremost legal minds." The American Bar Association rated Kagan as Unanimously Well Qualified.[20][21][22]

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

Confirmation hearings

Kagan's Public Questionnaire Available Here
Kagan's Questions For The Record Available Here
C-Span videos of the Kagan confirmation hearings

Judge Kagan's confirmation hearings were held from June 28, 2010, to July 2, 2010.[23] In materials released to the Senate Judiciary 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 possible recusals were due to her position as solicitor general:

I would recuse in all matters for which I was counsel of record.[24][5]


On July 20, 2010, the Senate Judiciary Committee voted 13 to 6 in favor of Kagan's confirmation. On August 5, 2010, the Senate voted 63 to 37 in favor of confirmation.[25][26]

Oath of office

Justice Kagan took the Constitutional and Judicial oaths of office on August 7, 2010. The oaths were administered by Chief Justice John Roberts. On October 1, 2010, Kagan again received the Judicial Oath as part of a formal investiture ceremony.[27]

Confirmation process criticism

In the past, Kagan has been very critical of aspects of previous confirmation processes, notably critiquing candidates for failure to be fully candid about their specific values and vision for the Supreme 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."[28] Given Kagan's lack of judicial rulings to refer to in judging her qualifications for the Supreme Court, Linda Greenhouse, of the editorial board of the New York Times, and Neomi Rao, of the Wall Street Journal, among others called for Kagan to be as open as possible during her hearings.[29][30][31][32]

During her 2009 solicitor general confirmation hearings, Kagan was questioned about her 1995 statement. She responded that she no longer felt that way by saying:

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.[33][5]


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 Supreme Court record.[34]

2010 2011 2012 2013
Opinions 7 7 8 7
Concurrences 0 1 2 0
Dissents 3 1 3 3
Concur in part, Dissent in part 0 1 0 0
Totals 10 10 13 10

Notable cases

On the issues

Role of courts

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

Kagan wrote an appreciation of Justice Marshall in 1993. In that publication, she stated: 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.[36][5]

During her confirmation hearings, Senator Specter asked Kagan about her view on the role of the courts and their interaction with the political branches. In part, Kagan responded:

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.[37][5]

First Amendment

During Kagan’s confirmation hearings to become solicitor general, Senator Specter referenced a memo she wrote for Justice Thurgood 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.[5]

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.[37][5]

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[.][37][5]

Kagan has authored several publications regarding First Amendment speech issues.[38] Two publications explored and advocated “alternative means of regulating some pornography and hate speech, or of alleviating the harms that such speech causes.”[39] Kagan described her endorsement of some limitations:

They will be 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.[40][5]

—Elena Kagan

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."[37][5]

Fourteenth Amendment

In answer to a question from Senator Arlen 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.”[37]

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."[37]

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."[37]

Kagan discussed the intersection of morality and legislation in answering a question from Senator Jeff Sessions, saying, "Many laws are grounded in moral and ethical principles and that those principles can provide a rational basis to support such laws."[37]

In answering a question from Senator John Cornyn, Kagan stated "[t]here is no federal constitutional right to same-sex marriage."[37]

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[.][37][5]

—Elena Kagan

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. 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.”[41]

Separation of powers

In response to questions from Senator Arlen 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."[37]

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 such an approach, “within broad but certain limits, both satisfies legal requirements and promotes the values of administrative accountability and effectiveness.”[42]

Statutory interpretation

In response to written confirmation questions from Senator Arlen 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.[37][5]

—Elena Kagan

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.[37][5]

—Elena Kagan

Agency deference

Kagan is the co-author of a publication that recommends adjusting the scrutiny of judicial review of agency action. The recommendation is intended to encourage the agency to shape its policymaking processes.[43]

Awards and associations

The awards and associations found here are taken from Elena Kagan's questionnaire and may not reflect her current awards and associations.


  • 2008: Recipient, Arabella Babb Mansfield Award, National Association of Women Lawyers
  • 2008: Recipient, John R. Kramer Outstanding Law School Dean Award, Equal Justice Works
  • 2005-Present: Member, American Academy of Arts and Sciences
  • 2005-Present: Honorary Fellow, Worcester College, Oxford University
  • 2003: Recipient, Annual Scholarship Award of the American Bar Association's Section of Administrative Law and Regulatory Practice
  • 1993: Recipient, University of Chicago Graduation Students' Award for Teaching Excellence
  • 1981: Recipient, Sachs Scholarship, Princeton University


  • 2008-Present: Member, Board of Trustees, Oxford University Press, Inc.
  • 2008-Present: Member, Advisory Board, American Indiana Empowerment Fund
  • 2008-Present: Member, Board of Directors, Equal Justice Works
  • 2007-Present: Member, Board of Directors, The Advantage Testing Foundation
  • 2007-2008: Member, New York States Commission on Higher Education
  • 2006-Present: Member, Board of Advisors, National Constitution Center's Peter Jennings Project for Journalists and the Constitution
  • 2005-2008: Member, Research Advisory Council, Goldman Sachs Global Markets Institute
  • 2004-Present: Member, Board of Directors, American Law Deans Association
  • 2003-Present: Member, Board of Trustees, Skadden Fellowship Foundation
  • 2003-2005: Member, Board of Directors, Thurgood Marshall Scholarship Fund
  • 2002-2003: Member, Litigation Committee, American Association of University Professors
  • 1994-1995: Public Member, Administrative Conference of the United States
  • 1993-1995: Member, Board of Governors, Chicago Council of Lawyers[44]


Elena Kagan enjoys baseball and is a fan of the New York Mets. As part of a promise made during her nomination process, she has joined Antonin Scalia on several hunting trips to better understand gun rights advocates. She also enjoys comics and movies based on them.[45]

Academic publications

Recent news

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See also

External links


  1. Gavel Grab, "Kagan sworn in as Supreme Court justice," August 7, 2010
  2. 2.0 2.1 2.2 Federal Judicial Center, "Kagan, Elena"
  3. MSNBC, "NBC: Obama to name Kagan for high court," May 10, 2010
  4. 4.0 4.1 Supreme Court Review, "The Justices of the United States Supreme Court: Justice Elena Kagan," accessed March 12, 2015
  5. 5.00 5.01 5.02 5.03 5.04 5.05 5.06 5.07 5.08 5.09 5.10 5.11 5.12 5.13 5.14 5.15 5.16 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.
  6. The Harvard Crimson, "Elena Kagan's first year on Supreme Court shows judge with chutzpah," August 7, 2011
  7. The Wall Street Journal, "The 'remarkably conversational' style of Elena Kagan," November 19, 2013
  8. Associated Press, "Kagan's remarks on her Supreme Court nomination," May 10, 2010
  9. New York Times, "Robert Kagan, 67, lawyer for tenants," July 25, 1994
  10. Wall Street Journal, "Elena Kagan public questionnaire from solicitor general," accessed April 24, 2014
  11. New York Sun, "Summers manages low profile while advising Senator Obama; some women warn Democrat about former Harvard president," January 5, 2009
  12. Georgetown University, "FAIR v. Rumsfeld," accessed July 11, 2014
  13. Harvard Law School, "Military recruitment at Harvard," accessed July 11, 2014
  14. Georgetown University, "The Harvard FAIR amicus," archived July 3, 2012
  15. THOMAS, "Nomination of Elena Kagan," May 20, 2009
  16. Government Printing Office, "Transcript of Specter's questions and comments during Kagan nomination hearings," accessed June 27, 2014
  17. Government Printing Office, "Kagan's answers to Specter during solicitor general nomination process," accessed July 11, 2014
  18. Washington Post, "Elena Kagan said to be Obama's Supreme Court pick," May 10, 2010
  19. NPR, "Having judged not, how will Kagan be judged?" May 10, 2010
  20. The White House Blog, "One of the nation's leading legal minds: The president nominates Elena Kagan for the Supreme Court'," May 10, 2010
  21. Fox News, "Obama nominates Kagan for Supreme Court," May 10, 2010
  22. Senate judiciary Committee, "Judicial Nomination Materials: 111th Congress," accessed April 24, 2014
  23. The Washington Post, "Elena Kagan confirmation hearings to begin June 28," May 19, 2010
  24. The Washington Post, "Kagan releases cartons of documents to Senate Judiciary Committee," May 18, 2010
  25. CNN, "Senate Judiciary Committee approves Kagan nomination," July 20, 2010
  26. NPR, "Senate confirms Kagan to Supreme Court," August 5, 2010
  27. Supreme Court of the United States, "Oaths of Office Taken by the Current Court," accessed September 3, 2013
  28. Wall Street Journal, "Elena Kagan and the 'hollow charade'," May 11, 2010
  29. Kagan, E. "Confirmation Messes, Old and New." The University of Chicago Law Review. Vol. 62, No. 2, p. 24. (Spring, 1995).
  30. New York Times Blog, "Just answer the question," May 10, 2010
  31. New York Times, "Searching for Elena Kagan," May 10, 2010
  32. Gavel Grab, "Revisiting what Kagan labeled the confirmation ‘charade’," May 11, 2010
  33. The Daily Caller, "Elena Kagan no longer thinks Supreme Court nominees should have to answer direct questions," May 10, 2010
  34. Supreme Court of the United States: Opinions by year, accessed March 12, 2015
  35. Supreme Court of the United States, "American Express v. Italian Colors Restaurant," accessed June 26, 2014
  36. Elena Kagan, “For Justice Marshall,” 71 Tex. L. Rev. 1125 (1993).
  37. 37.00 37.01 37.02 37.03 37.04 37.05 37.06 37.07 37.08 37.09 37.10 37.11 37.12 Senate Judiciary Committee, "Statements of Kagan during solicitor general nomination process," archived June 25, 2009
  38. 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).
  39. For example, see Elena Kagan, “Regulation of Hate Speech and Pornography After R.A.V,” 60 U. Chi. L. Rev. 873 (1993).
  40. 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).
  41. Congressional Record - Senate, "S12802."
  42. Elena Kagan, “Presidential Administration,” 114 Harvard L. Rev. 2245 (2001).
  43. Elena Kagan & David Barron. “Chevron’s Nondelegation Doctrine,” 2001 Sup. Ct. Rev. 201 (2001).
  44. Senate Judiciary Committee, "Questionnaire for Elena Kagan," accessed June 27, 2014
  45. Supreme Court Review, "Justice Elena Kagan," accessed June 26, 2014
  46. 114 Harv. L. Rev. 2245
  47. 2001 Sup. Ct. Rev. 201
  48. 29 U.C. Davis L. Rev. 957
  49. 63 U. Chi. L. Rev. 413
  50. 60 U. Chi. L. Rev. 873
  51. 71 Tex. L. Rev. 1125
Political offices
Preceded by:
John Paul Stevens
Supreme Court
Seat #5
Succeeded by: