Elena Kagan ( / ˈ k eɪ ɡ ə n / KAY -guhn ; born April 28, 1960) is an American lawyer who works as a justice on the Supreme Court of the United States. She was chosen in 2010 by President Barack Obama and is the fourth woman to serve on the Court.

Kagan was born and grew up in New York City. She completed her education at Princeton University, Worcester College at Oxford University, and Harvard Law School. Afterward, she worked as a clerk for a federal court judge and for Supreme Court Justice Thurgood Marshall. She began her career as a teacher at the University of Chicago Law School. Later, she worked as a top advisor in the White House and as a policy adviser for President Bill Clinton. After being nominated to the United States Court of Appeals for the D.C. Circuit, which did not move forward, she became a professor at Harvard Law School and was later named its first female dean.

In 2009, Kagan became the first woman to serve as the United States solicitor general. The next year, President Obama nominated her to the Supreme Court to replace Justice John Paul Stevens, who was about to retire. The United States Senate approved her nomination with a vote of 63–37. As of 2022, she is the most recent justice appointed without any previous experience as a judge. She worked to find common ground until the conservative majority decided to overturn Roe v. Wade. She has written the majority opinion in important cases, such as Cooper v. Harris, Chiafalo v. Washington, and Kisor v. Wilkie. She has also written notable opposing opinions in cases like Rucho v. Common Cause, West Virginia v. EPA, Brnovich v. DNC, Janus v. AFSCME, and Seila Law v. CFPB.

Early life

Elena Kagan was born on April 28, 1960, in Manhattan. She was the second of three children of Robert Kagan, an attorney who helped tenants stay in their homes, and Gloria (Gittelman) Kagan, who taught at Hunter College Elementary School. Both of her parents were children of Russian Jewish immigrants. One of her grandfathers, Irving Louis Kagan, was born in Białystok and moved to Brooklyn in 1907. One of her grandmothers, Esther Bokelman, moved with her family from Russia to Philadelphia as a child.

Kagan grew up in New York City. She has two brothers, Marc and Irving. Marc taught New York City mayor Zohran Mamdani at the Bronx High School of Science and was part of his transition team.

Kagan and her family lived in an apartment on the third floor at West End Avenue and 75th Street. They attended Lincoln Square Synagogue. As a young person, Kagan was independent and strong-willed. A former law partner of her father said she disagreed with her Orthodox rabbi, Shlomo Riskin, about aspects of her bat mitzvah. She had strong opinions about what a bat mitzvah should be like, which did not match the rabbi’s wishes. Kagan and Riskin found a solution. Riskin had never performed a ritual bat mitzvah before. Kagan wanted to read from the Torah on a Saturday morning, like the boys did, but instead read from the Book of Ruth on a Friday night. She now practices Conservative Judaism.

Kagan’s childhood friend, Margaret Raymond, said Kagan was a teenage smoker but not a partier. On Saturday nights, Raymond and Kagan often sat on the steps of the Metropolitan Museum of Art and talked. Kagan loved literature and read Jane Austen’s Pride and Prejudice every year. In her 1977 Hunter College High School yearbook, she is pictured wearing a judge’s robe and holding a gavel. Next to the photo is a quote from former Supreme Court Justice Felix Frankfurter: “Government is itself an art, one of the subtlest of arts.”

Kagan attended Hunter College High School, where her mother taught. The school was known as one of the most elite learning institutions for high school girls and attracted students from across New York City. Kagan was one of the school’s most outstanding students. She was elected president of the student government and served on a student-faculty consultative committee. She then attended Princeton University, graduating in 1981 with a Bachelor of Arts, summa cum laude, in history. She was especially interested in American history and archival research. 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, the 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.” Wilentz noted Kagan did not mean to defend socialism, explaining that she “was interested in it. To study something is not to endorse it.”

As an undergraduate, Kagan served as editorial chair of The Daily Princetonian. Along with eight other students, she wrote a “Declaration of the Campaign for a Democratic University.” It called for “a fundamental restructuring of university governance” and criticized Princeton’s administration for making decisions “behind closed doors.” Despite the liberal tone of The Daily Princetonian’s editorials, Kagan was politically reserved in her interactions with fellow reporters. Her colleague, Steven Bernstein, said he “cannot recall a time in which Kagan expressed her political views.” He described her political stances as “sort of liberal, democratic, progressive tradition, and everything with lower case.”

In 1980, Kagan received Princeton’s Daniel M. Sachs Class of 1960 Graduating Scholarship, one of the university’s highest general awards. This allowed her to study at Worcester College, Oxford. As part of her graduation requirement, Kagan wrote a thesis titled “The Development and Erosion of the American Exclusionary Rule: A Study in Judicial Method.” It examined the exclusionary rule and its evolution on the Supreme Court, particularly the Warren Court. She earned a Master of Philosophy in politics at Oxford in 1983.

In 1983, at age 23, Kagan entered Harvard Law School. Adjusting to Harvard’s environment was difficult—she received the worst grades of her entire law school career in her first semester. She later earned an A in 17 of the 21 courses she took at Harvard and became a supervisory editor of the Harvard Law Review. She worked as a summer associate at the Wall Street law firm Fried, Frank, Harris, Shriver & Jacobson, where she focused on the litigation department. She graduated in 1986 with a Juris Doctor degree, magna cum laude. Her 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.”

Career

After law school, Kagan worked as a law clerk for Judge Abner J. Mikva of the U.S. Court of Appeals for the District of Columbia Circuit from 1986 to 1987. Mikva called her "the pick of the litter," showing he considered her one of his best clerks. From 1987 to 1988, she worked as a law clerk for Justice Thurgood Marshall of the U.S. Supreme Court. Marshall said he hired Kagan to help him make his opinions more lively, as the Court had become more conservative since William Rehnquist became Chief Justice in 1986. Marshall nicknamed Kagan "Shorty" because she was 5 feet 3 inches tall.

From 1989 to 1991, Kagan worked at the Washington, D.C., law firm Williams & Connolly. As a junior associate, she helped write legal documents and gathered information for lawsuits. During her time there, she handled five cases involving First Amendment rights, media law, and libel.

In 1991, Kagan became an assistant professor at the University of Chicago Law School. There, she met Barack Obama, who was a guest lecturer. While teaching, she wrote articles about free speech laws and the importance of government reasons in regulating speech. One article, which became very influential, argued that the Supreme Court should consider why the government acts when deciding free speech cases.

In 1993, Senator Joe Biden appointed Kagan as a special counsel for the Senate Judiciary Committee. During this time, she helped with the confirmation hearings for Justice Ruth Bader Ginsburg.

Kagan became a tenured professor in 1995. Colleagues said her students admired her, and she received tenure even though some thought she had not published enough.

From 1995 to 1996, Kagan worked as an Associate White House Counsel for President Bill Clinton, when Mikva was also White House Counsel. She helped with issues like the Whitewater controversy, the White House travel office controversy, and the case Clinton v. Jones. From 1997 to 1999, she worked as Deputy Assistant to the President for Domestic Policy and deputy director of the Domestic Policy Council. She focused on topics like budget funding, campaign finance reform, and social welfare. Her work is recorded in the Clinton Library. In 1997, she coauthored a memo urging President Clinton to support a ban on late-term abortions.

On June 17, 1999, President 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, did not schedule a hearing, which effectively ended her nomination. When the Senate term ended, her nomination was no longer considered, as was the nomination of fellow Clinton nominee Allen Snyder.

After her time in the White House and the failed judicial nomination, Kagan returned to academia in 1999. She tried to return to the University of Chicago but had left her tenured position during her time in the Clinton administration. The university chose not to rehire her, possibly because they doubted her commitment to teaching. Kagan then became a visiting professor at Harvard Law School. While there, she wrote an article about U.S. administrative law, focusing on the president’s role in shaping federal laws. The article was honored as the top scholarly work of the year by the American Bar Association’s Section on Administrative Law and Regulatory Practice.

In 2001, Kagan became a full professor at Harvard Law School. In 2003, she was named dean of the Law School by Harvard University President Lawrence Summers. She replaced Robert C. Clark, who had been dean for over a decade. During her time as dean, she focused on improving student satisfaction by building new facilities, changing the first-year curriculum, and adding comforts like free morning coffee. Colleagues praised her leadership style for reducing conflicts among faculty.

As dean, Kagan inherited a $400 million fundraising campaign called "Setting the Standard." The campaign ended in 2008 with $476 million raised, which was 19% more than the original goal. She hired many new faculty members, including legal scholars like Cass Sunstein and Lawrence Lessig, and also brought in conservative scholars like Jack Goldsmith.

During her deanship, Kagan continued a policy that kept military recruiters from the Office of Career Services because she believed the military’s "Don’t Ask, Don’t Tell" policy was unfair to gay and lesbian people. In 2003, she sent an email to students and faculty criticizing the military’s presence on campus, calling the policy a "moral injustice."

From 2005 to 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 work.

In early 2007, Kagan was a finalist for the presidency of Harvard University after Lawrence Summers resigned. The position went to Drew Gilpin Faust instead. Kagan was reportedly disappointed, and students celebrated her leadership with a party.

On January 5, 2009, President-elect Barack Obama announced he would nominate Kagan to be Solicitor General. She was considered for the position of Deputy Attorney General before her nomination. At the time, Kagan had never argued a case in court. Two previous solicitors general, Robert Bork and Kenneth Starr, also had no Supreme Court experience.

During her confirmation hearings, senators asked whether she would defend laws she personally disagreed with and whether she was qualified for the role due to her lack of courtroom experience. Kagan said she would defend laws, such as the Defense of Marriage Act, if there was any reasonable reason to do so. The Senate confirmed

Supreme Court

Before President Obama was elected, the media talked about Kagan possibly being chosen as a Supreme Court nominee if a Democratic president was elected in 2008. In 2009, President Obama had his first chance to fill a Supreme Court vacancy when Justice David Souter announced he would retire. A senior Obama adviser, David Axelrod, later said that Justice Antonin Scalia told him he hoped Obama would choose Kagan because of her intelligence. On May 13, 2009, the Associated Press reported that Obama was considering Kagan, among others. On May 26, 2009, Obama announced he had chosen Sonia Sotomayor instead.

In 2010, Justice John Paul Stevens announced he would retire at the start of the Court’s summer recess, leading to new discussions about possible replacements. Kagan was again considered as a candidate. Jeffrey Toobin, a Supreme Court analyst and Kagan’s friend, said she might be Obama’s nominee, calling her a "moderate Democrat" and a "consensus builder." Some liberals worried that choosing Kagan might shift the Court to the right.

On May 10, 2010, Obama nominated Kagan to the Supreme Court. More than 69 law school deans, from about one-third of the country’s law schools, supported her nomination in an open letter. They praised her ability to work with others and her understanding of legal principles.

Kagan’s confirmation hearings before the Senate Judiciary Committee began on June 28. Many expected her to be confirmed, with Senator John Cornyn calling her "justice-to-be." During the hearings, Kagan showed strong knowledge of Supreme Court cases, answering senators’ questions without taking notes. Some Democratic senators criticized recent court decisions as "activist," but Kagan did not join their criticism. Like many nominees before her, she avoided saying whether she agreed with past court decisions or how she would vote on specific issues. Some senators, including Jon Kyl and Arlen Specter, criticized her for being unclear. Specter noted that Kagan had written an article in 1995 criticizing the same kind of evasiveness she practiced. Republican senators questioned her background, but Kagan promised to remain impartial. On July 20, 2010, the Senate Judiciary Committee voted 13–6 to recommend her confirmation. On August 5, the full Senate confirmed her by a vote of 63–37, mostly along party lines. Five Republicans and one Democrat supported her, while the rest opposed.

Kagan was sworn in on August 7, 2010, at the White House. Chief Justice John Roberts administered the oaths, making her the 112th justice (100th associate justice) of the Supreme Court. She is the first person appointed to the Court without prior judicial experience since 1972. She is also the fourth female justice and the eighth Jewish justice in the Court’s history.

Because of her work as solicitor general, Kagan stepped aside from 28 of the 78 cases heard during her first year on the Court to avoid conflicts of interest. She did this again in 2017 in the case Jennings v. Rodriguez due to similar conflicts.

Kagan’s first opinion as a justice was in Ransom v. FIA Card Services, a case about bankruptcy law. She wrote that debtors cannot claim car-related expenses as protection from creditors if they own the car outright and do not make loan or lease payments. She explained that the word "applicable" in the law meant only certain car costs could be claimed.

Kagan’s first dissent was in Arizona Christian School Tuition Organization v. Winn, where she disagreed with the majority’s decision about tax credits for religious schools. She called the distinction between tax credits and grants "arbitrary" and said the ruling could allow government funding of religion. In another case, Town of Greece v. Galloway, she argued that prayers at town meetings favored one religion and violated the First Amendment.

Kagan dissented in Luis v. United States, where the majority said freezing a defendant’s assets before trial could violate their right to counsel. She agreed with Justice Kennedy that the ruling was unfair but also suggested the earlier Monsanto case might have been wrong. She did not overturn Monsanto in this case.

Kagan wrote for the majority in Cooper v. Harris, a case about voting district boundaries.

Writing style

During her first term on the Court, Justice Kagan did not write any individual opinions. She wrote the fewest opinions of all the justices. She only wrote majority opinions or dissents that more senior justices assigned to her. In these cases, she and a group of justices agreed on the reasoning for deciding the case. This pattern of writing for a group rather than expressing her own views made it hard to understand her personal opinions or how she might decide future cases. From 2011 through 2014, she wrote the fewest opinions, tying with Justice Kennedy in 2011 and 2013.

Justice Kagan’s writing style is described as easy to understand, using many different ways to present ideas. She has said she writes on the Court like she used to teach in the classroom, using strategies to help readers follow her arguments. Her opinions include examples and comparisons to make legal ideas clearer for a wide audience. In one case, she wrote the majority opinion in Kimble v. Marvel Entertainment, LLC, a 6–3 decision that ruled in favor of Marvel. The case decided that a person who holds a patent cannot receive money after the patent expires. In this opinion, she used references to Spider-Man to explain her reasoning.

Jurisprudence

Elena Kagan is often seen as a moderate. When she was nominated to the Supreme Court, White House officials, concerned that liberals might think she was too moderate, described her as a "pragmatic progressive." On the Court, she usually worked to find agreements among justices until the conservative majority decided to overturn Roe v. Wade. After the Court’s decision in Dobbs v. Jackson Women’s Health Organization, Kagan openly criticized the Court’s move toward more conservative views. She voted with the more liberal justices in King v. Burwell (576 U.S. 988, 2015), where the Court ruled that the Affordable Care Act’s subsidies and individual mandate are constitutional, and in Obergefell v. Hodges (576 U.S. 644, 2015), which said states cannot ban same-sex marriage. In 2018, Slate noted that Kagan had voted across ideological lines in several cases during the previous term and was part of a group of moderate justices, including Chief Justice John Roberts, Justice Stephen Breyer, and Justice Anthony Kennedy. However, FiveThirtyEight reported that Kagan voted with her more liberal colleagues, Justices Ruth Bader Ginsburg and Sonia Sotomayor, over 90% of the time. During the 2017–18 term, Kagan most often agreed with Breyer, voting together in 93% of cases. She agreed with Justice Samuel Alito the least often, in 58.82% of cases.

Kagan served as the circuit justice, the justice responsible for handling emergency requests, for the Sixth and Seventh Circuit courts. After Brett Kavanaugh was confirmed to the Court, Kagan was assigned to the Ninth Circuit, the largest circuit by area. It includes the states of Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, and the Northern Mariana Islands.

Other activities

Justice Kagan, like other justices, participates in public events when she is not working on cases. During her first four years on the Supreme Court, she gave at least 20 public speeches. She often chooses speaking opportunities that let her talk to students.

In 2013, Time magazine listed Kagan as one of its Time 100 most influential people. Former Supreme Court Justice Sandra Day O'Connor wrote the article about Kagan, describing her as "an incisive legal thinker" and "excellent communicator." That same year, a painting of the four women who have served as Supreme Court justices—Kagan, Sotomayor, Ginsburg, and O'Connor—was displayed at the National Portrait Gallery in Washington, D.C. In 2018, Kagan received the Marshall-Wythe Medallion from William & Mary Law School and an honorary Doctor of Humane Letters degree from Hunter College.

Personal life

Elena Kagan has never been married. During her confirmation to the Supreme Court, a photo of her playing softball, which some media describe as not traditionally feminine, led to unproven claims that she was a lesbian. Her friends have spoken out against these 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."

Kagan's colleagues and friends at Harvard described her as a friendly person who enjoys conversation, is warm, and has a good sense of humor. Before becoming a Supreme Court justice, she played poker and smoked cigars.

Early in her time on the Supreme Court, Kagan began spending time with several of her new colleagues. She attended the opera with Justice Ruth Bader Ginsburg, had dinner with Justice Sonia Sotomayor, attended legal events with Justices Anthony Kennedy and Clarence Thomas, and went hunting with Justice Antonin Scalia. The hunting trips began after Kagan made a promise to U.S. Senator Jim Risch of Idaho during a meeting before her confirmation. Risch was concerned that, as a person from New York City, Kagan might not understand the importance of hunting to his constituents. Kagan first offered to go hunting with Risch but later promised to go hunting with Scalia if she was confirmed. Kagan said Scalia laughed when she told him about the promise and took her to his hunting club for the first of several hunting trips. Kagan prefers to spend time with friends from her time in law school and from her work in the Clinton administration rather than attending social events in Washington, D.C., even though she is invited to them as a justice.

Selected scholarly works

• Kagan, Elena (1992). "The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion." Supreme Court Review. 1992: 29–77. doi: 10.1086/scr.1992.3109667.
• — (1993). "Regulation of Hate Speech and Pornography After R.A.V." University of Chicago Law Review. 60 (3/4): 873–902. doi: 10.2307/1600159. JSTOR 1600159.
• — (1995). "Confirmation Messes, Old and New." University of Chicago Law Review. 62 (2): 919–42. doi: 10.2307/1600153. JSTOR 1600153.
• — (1996). "Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine." University of Chicago Law Review. 63 (2): 413–517. doi: 10.2307/1600235. JSTOR 1600235.
• — (2001). "Presidential Administration." Harvard Law Review. 114 (8): 2245–2385. doi: 10.2307/1342513. JSTOR 1342513.
• —; Barron, David J. (2001). "Chevron's Nondelegation Doctrine." Supreme Court Review. 2001: 201–65. doi: 10.1086/scr.2001.3109689.