Elena Kagan (pronounced /ˈkeɪɡən/; born April 28, 1960)[2] is an associate justice of the Supreme Court of the United States. Kagan is the Court's 112th justice and fourth female justice.
Kagan was born and raised in New York City. After attending Princeton, Oxford, and Harvard Law School, she completed federal Court of Appeals and Supreme Court clerkships. 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 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.
President Obama appointed her Solicitor General on January 26, 2009. On May 10, 2010, Obama nominated her to the Supreme Court to fill the vacancy from the impending retirement of Justice John Paul Stevens. After Senate confirmation, Kagan was sworn in on August 7, 2010, by Chief Justice John G. Roberts. Kagan's formal investiture ceremony before a special sitting of the United States Supreme Court took place on October 1, 2010.[3]
Kagan was born in New York City, the middle of three children, on the city's Upper West Side. Her mother, Gloria Gittelman Kagan, taught fifth and sixth grade at Hunter College Elementary School, and her father, Robert Kagan, was an attorney.[4][5] Kagan's two brothers are public school teachers.[6]
Kagan and her family lived in a third-floor apartment at West End Avenue and 75th Street[7] and attended Lincoln Square Synagogue.[8] Kagan was independent and strong-willed in her youth and, according to a former law partner, clashed with her Orthodox rabbi over aspects of her bat mitzvah.[7] "She had strong opinions about what a bat mitzvah should be like, which didn't parallel the wishes of the rabbi," said her former colleague. "But they finally worked it out. She negotiated with the rabbi and came to a conclusion that satisfied everybody." Kagan's rabbi, Shlomo Riskin, had never performed a ritual bat mitzvah before.[8] "Elena Kagan 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. Kagan asked to read from the Torah on a Saturday morning but ultimately read on a Friday night, May 18, 1973, from the Book of Ruth.[8] Today, she identifies with Conservative Judaism.[8]
Childhood friend Margaret Raymond recalled that Kagan was a teenage smoker but not a partier. On Saturday nights, she and Kagan "were more apt to sit on the steps of the Metropolitan Museum of Art and talk."[7] Kagan also loved literature and re-read Jane Austen's Pride and Prejudice every year.[7] In her Hunter College High School yearbook of 1977, Kagan was pictured in a judge's robe and holding a gavel.[9]
Next to her photo was a quote from former Supreme Court Justice Felix Frankfurter: "Government is itself an art, one of the subtlest of arts."[10] After graduating from high school, Kagan attended Princeton University, where she earned an A.B., summa cum laude in history in 1981. Among the subjects she studied was the socialist movement in New York City in the early 20th century. 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 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."[11] Wilentz insists that she did not mean to defend socialism, noting that, "She was interested in it. To study something is not to endorse it."[12] Wilentz called Kagan "one of the foremost legal minds in the country, she is still the witty, engaging, down-to-earth person I proudly remember from her undergraduate days."[13]
As an undergraduate, Kagan also served as editorial chair of the Daily Princetonian. Along with eight other students (including Eliot Spitzer, who was student body president at the time), Kagan penned the Declaration of the Campaign for a Democratic University, which called for "a fundamental restructuring of university governance" and condemned Princeton's administration for making decisions "behind closed doors".[14]
Kagan graduates from Harvard Law School in 1986.
She received Princeton's Daniel M. Sachs Class of 1960 Graduating Scholarship, one of the highest general awards conferred by the university, which enabled her to study at Worcester College, Oxford. She earned a Master of Philosophy at Oxford in 1983.[15] She received a Juris Doctor, magna cum laude, at Harvard Law School in 1986, where she was supervisory editor of the Harvard Law Review. Friend Jeffrey Toobin recalled 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."[16]
Kagan has never married and has no children.[17]
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 and for Justice Thurgood Marshall of the U.S. Supreme Court in 1988. Marshall nicknamed the 5 foot 3 inch Kagan "Shorty".[7] She later entered private practice as an associate at the Washington, D.C., law firm of Williams & Connolly.[2]
Kagan joined the faculty of the University of Chicago Law School as an assistant professor in 1991 and became a tenured professor of law in 1995.[18] While at the University of Chicago, she 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; an article discussing the significance of governmental motive in regulating speech; and a review of a book by Stephen L. Carter discussing the judicial confirmation process.
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."[19]
In 1996 she wrote an article in the University of Chicago Law Review entitled, "Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine." Kagan argued that the Supreme Court should examine governmental motives when deciding First Amendment cases.[20] She analyzed historic draft-card burning and flag burning cases in light of free speech arguments.[21]
While serving as an adviser in the White House domestic policy office, Kagan co-authored a May 13, 1997, memo to President Bill Clinton urging him 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."[22]
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.[23]
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, but having given up her tenured position as a result of her extended stint in the Clinton Administration, she needed to be rehired and the school chose not to do so, reportedly because of doubts about her commitment to academia.[24] Kagan quickly found a position as a visiting professor at Harvard Law School. While at Harvard, 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.[citation needed]
Kagan as Dean of Harvard Law School
In 2001, she was named a full professor and in 2003 was named Dean of the Law School by Harvard University President Lawrence Summers.[25] 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.[26][27][28]
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.[29] 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[30] and Lawrence Lessig away from Stanford.[31] She also broke a logjam on conservative hires by bringing in scholars such as Jack Goldsmith, who had been serving in the Bush administration.[27]
According to Kevin Washburn, 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.[32]
During her deanship, Kagan upheld a decades old policy barring military recruiters from the Office of Career Services because she felt that 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 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.[33][34]
In October 2003, Kagan transmitted 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."[35]
From 2005 through 2008, Kagan was a member of the Research Advisory Council of the Goldman Sachs Global Markets Institute and received a $10,000 stipend for her service in 2008.[36]
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 out to Drew Gilpin Faust. She was reportedly disappointed not be chosen, and supportive law school students threw her a party to express their appreciation for her leadership.[37]
On January 5, 2009, President-elect Barack Obama announced he would nominate Kagan to be Solicitor General.[38][39] Before this appointment she had never argued a case before any court.[40] At least two previous solicitors general, Robert Bork and Kenneth Starr, also 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.[41]
Kagan was confirmed by the U.S. Senate on March 19, 2009, by a vote of 61 to 31,[42] becoming the first woman to hold the position. She made her first appearance before the Supreme Court on September 9, 2009, in Citizens United v. Federal Election Commission.[43]
The First Amendment Center and the Cato Institute later expressed concern over arguments Kagan advanced as a part of her role as Solicitor General. For example, during her time as Solicitor General, Kagan prepared a brief defending a law later ruled unconstitutional that criminalized depictions of animal cruelty.[44][45] During her confirmation hearing, she said that "there is no federal constitutional right to same-sex marriage." Also during her confirmation hearing, she was asked about the Defense of Marriage Act, pursuant to which states cannot recognize same-sex marriages originating in other states. Kagan indicated that she would defend the act if "there was any reasonable basis to do so."[46]
Prior to the election of President Barack Obama, 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.[47][48][49][50][51] This speculation increased after the retirement announcement of Associate Justice David H. Souter, effective at the start of the Court's summer 2009 recess.[52]
It was speculated that her position as Solicitor General would increase Kagan's chances for nomination, since Solicitors General have been considered potential nominees to the Supreme Court in the past. On May 13, 2009, the Associated Press reported that Obama was considering Kagan, among others, for possible appointment to the United States Supreme Court.[53] On May 26, 2009, however, Obama announced that he was nominating Sonia Sotomayor to the post.[54]
On April 9, 2010, Justice John Paul Stevens announced that he would retire at the start of the Court's summer 2010 recess, triggering new speculation about Kagan's potential nomination to the bench.[55] In a Fresh Dialogues interview, Jeffrey Toobin, a Supreme Court analyst and Kagan's friend and law school classmate[56], speculated that Kagan would likely be President Obama's nominee, describing her as "very much an Obama type person, a moderate Democrat, a consensus builder."[57] This possibility has alarmed many liberals and progressives, who worried that "replacing Stevens with Kagan risks moving the Court to the right, perhaps substantially to the right."[58]
While Kagan's name was mentioned as a possible replacement for Justice Stevens, the New York Times noted that she "has supported assertions of executive power."[59] This view of vast executive power has caused some commentators to fear that she would reverse the majority in favor of protecting civil liberties on the Supreme Court were she to replace Stevens.[60]
On May 10, 2010, Obama nominated Kagan to the Supreme Court to fill the vacancy left by Justice Stevens.[61] 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.[62]
Kagan, Obama, and Roberts before her investiture ceremony
The confirmation hearings began June 28. Kagan's testimony and her answers to the Senate Judiciary Committee's questions on July 20 were uneventful, containing no new revelations about her character or background. Arlen Specter of Pennsylvania cited an article Kagan had published in the Chicago Law Review in 1995, criticizing the evasiveness of Supreme Court nominees in their hearings.[63] Kagan, noted Specter, was now practicing that very evasiveness.[64] 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.[65] The voting was largely on party lines, with five Republicans (Richard Lugar, Judd Gregg, Lindsey Graham, Susan Collins, and Olympia Snowe) supporting her and one Democrat (Ben Nelson) opposing. The Senate's two independents voted in favor of confirmation. She was sworn in by Chief Justice John Roberts on Saturday August 7, in a private ceremony.[3][66]
Kagan is the first justice appointed without any prior experience as a judge since William Rehnquist in 1972.[67][68][69] 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,[70] making three of the nine current justices Jewish.
Kagan's first opinion, Ransom v. FIA Card Services, was filed on January 11, 2011. In an 8–1 decision, Kagan found that an individual declaring bankruptcy could not count expenses for a car he had paid off in his "applicable monthly expenses".[71][72]
Legal analyst Jeffrey Rosen praised Kagan's "eloquent voice," which he characterized as unusual for a relative newcomer to the Court, and noted her "ability to puncture her colleagues’ bloodless abstractions and tendentious arguments, and to explain the constitutional stakes in plain language that all citizens can understand." He said Kagan's writing was giving Justice Antonin Scalia "a run for his money."[73]
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- ^ Bravin, Jess (January 11, 2011). "Justice Kagan Pens First Opinion, an 8–1 Win for Credit Card Companies". The Wall Street Journal. http://blogs.wsj.com/law/2011/01/11/justice-kagan-pens-first-opinion-an-8-1-win-for-credit-card-companies/. Retrieved January 18, 2011.
- ^ "09-907 Ransom v. FIA Card Services (01/11/2011)" (PDF). http://www.supremecourt.gov/opinions/10pdf/09-907.pdf. Retrieved May 4, 2011.
- ^ Rosen, Jeffrey. "Strong Opinions – This year’s biggest surprise at the Supreme Court: Elena Kagan’s prose.". The New Republic. http://www.tnr.com/article/politics/magazine/92773/elena-kagan-writings?passthru=NzIyOTJkMDljOGY1ZWRhNmJlNDU3YmQyYTMxYzI5MzM. Retrieved August 3, 2011.
- Potier, Beth (September 16, 2004). "Big plans highlight Elena Kagan's 2L; HLS dean looks forward to a busy year". Harvard Gazette (Harvard News Office). http://www.news.harvard.edu/gazette/2004/09.16/03-kagan.html. Retrieved January 5, 2009.
- Levine, Adina (September 30, 2004). "Kagan declares state of the law school is "very strong"; Plans more construction, reassessment of curriculum, and enlargement of faculty". Harvard Law Record (Harvard Law School Record Corporation). ISSN 0017-8101. http://www.hlrecord.org/media/paper609/news/2004/09/30/News/Kagan.Declares.State.Of.The.Law.School.Is.very.Strong-739674.shtml?norewrite&sourcedomain=www.hlrecord.org&page=3. Retrieved January 5, 2009.
- "No Excuse Not to Work Out: Hemenway Opens". Harvard Law Record (Harvard Law School Record Corporation). September 29, 2005. ISSN 0017-8101. http://www.hlrecord.org/media/paper609/news/2005/09/29/News/No.Excuse.Not.To.Work.Out.Hemenway.Opens-1005413.shtml?norewrite&sourcedomain=www.hlrecord.org. Retrieved January 5, 2009.
- Brown, Kelly Lynn (September 30, 2004). "Editorial: Dean Kagan off to a promising start". Harvard Law Record (Harvard Law School Record Corporation). ISSN 0017-8101. http://www.hlrecord.org/media/paper609/news/2004/09/30/Opinion/Editorial.Dean.Kagan.Off.To.A.Promising.Start-739681.shtml?norewrite&sourcedomain=www.hlrecord.org. Retrieved January 5, 2009.
- Gerstein, Josh (March 10, 2006). "As Harvard Seeks a President, Dean Kagan's Star Is Rising". New York Sun. http://www.nysun.com/article/28925?page_no=1. Retrieved January 5, 2009. "Ms. Kagan, 45, is credited with overseeing a renaissance at the law school during her nearly three years as dean, and many of her fans believe she could achieve the same for the entire university if given the chance."
- Bennett, Drake (October 19, 2008). "Crimson tide – Harvard Law School, long fractious and underachieving, is on the rise again – and shaking up the American legal world". Boston Globe. http://www.boston.com/bostonglobe/ideas/articles/2008/10/19/crimson_tide/. Retrieved January 5, 2009. "[T]here is near unanimity that the school's dean, Elena Kagan, a scholar of administrative law and a former Clinton administration official, has galvanized the place with her ambition and adroit management style, knitting together the faculty, charming the students, and attracting top-flight talent to the school."
- Leonard, Tom (April 24, 2009). "Barack Obama administration seeks to change police questioning law". The Daily Telegraph (UK). http://www.telegraph.co.uk/news/worldnews/northamerica/usa/barackobama/5214985/Barack-Obama-administration-seeks-to-change-police-questioning-law.html. Retrieved April 24, 2009. "The Justice Department, in a brief signed by Elena Kagan, the solicitor general, said the 1986 decision "serves no real purpose" and offers only "meagre benefits"."
- Lichtblau, Eric (May 15, 2009) Potential Justice's Appeal May Be Too Bipartisan, New York Times
- van Diggelen, Alison (April 10, 2010). "Jeffrey Toobin says Elena Kagan Likely Supreme Court Justice". Huffington Post (USA). http://www.huffingtonpost.com/alison-van-diggelen/jeffrey-toobin-says-elena_b_532838.html. Retrieved April 10, 2010. ""She's very much an Obama type person, a moderate Democrat, a consensus builder ...""
- Greenwald, Glenn (April 13, 2010) The case against Elena Kagan, Salon.com
- The Progressive Case For Elena Kagan Thinkprogress.com (May 10, 2010)
