Supreme Court Review 2016/2017 TERM
SUNDAY, JULY 23, 2017

THE JUSTICES OF THE UNITED STATES SUPREME COURT

They are called "Justices" not "Judges" to differentiate themselves from lower court judges

As the most recent addition to the Court, Justice Kagan is the Court's most junior justice. She was nominated to the bench by President Obama in May 2010 to fill the seat of retiring Justice John Paul Stevens. Justice Kagan was recommended to the full Senate by a vote of 13-6 by the Senate Judiciary Committee and confirmed by a vote of 63–37. She is the first justice since Justice Rehnquist joined the Court in 1972 without prior experience as a judge.

Elena was the middle child born to a lawyer and teacher in New York City on April 28, 1960. She grew up on Manhattan's Upper West Side. Her parents were the children of Jewish immigrants and the first in their families to attend college. Her father was a housing lawyer who attended Yale Law School and fought for tenants' rights. Her mother, Gloria (who died in 2008), was a public school teacher who taught fifth and sixth grade at Hunter College Elementary School, where Elena attended elementary school. Elena's two brothers also followed in their mother's footsteps and are schoolteachers. Her brother Marc, who once worked for the NYC subway system and was a union activist, now teaches social studies at the Bronx High School of Science. Her brother Irving teaches social studies at Hunter College High School.

Elena was an extremely intelligent and confident child who was not afraid to engage her superiors in argument. She is said to have fought with her family's rabbi over the traditions to be observed at her bat mitzvah.

Elena attended one of New York's best public high schools for girls at the time - Hunter College High School (the school is now co-ed). In high school, Elena was an excellent student. Her friends also remembered that she smoked cigarettes. Elena would later take on Big Tobacco when she served in the Clinton White House. Elena was not a partier though and a high school friend remembers that on Saturday nights, Elena and her were more likely to be found sitting on the steps of the Metropolitan Museum of Art chatting than at parties. Elena went on to be president of the student government and was appointed to serve on a faculty committee.

From an early age she aspired to be a Supreme Court justice. She is pictured in her high school yearbook in a judge's robe with a gavel next to a quote from a prior Supreme Court justice, Felix Frankfurter. The quote reads "Government is itself an art, one of the subtlest of arts."

Family friends say that Elena was very much her father's girl. Her father who represented tenant's associations whose apartments were being converted to co-ops also involved himself in community politics. He served as chairmen of his local community board, a trustee of the West End Synagogue and president of the United Parents Association. Robert Kagan died in 1994. Her father's partner said of him - "He was one of these people whom everyone liked and everyone believed. . . . He could deal with people in extremely difficult circumstances. . . . That was his talent."

In 1977, Kagan went on to attend Princeton University where she was a history major and a newspaper editor for The Princetonian, a daily student newspaper. At college, her circle of friends included Eliot Spitzer, the future governor of New York, who became student body president and Bruce Reed, who would later hire her as his deputy when he headed the White House Domestic Policy Council under President Bill Clinton.

For her senior thesis Kagan explored the history of American radicalism and wrote a paper entitled "To the Final Conflict: Socialism in New York City, 1900-1933." In the acknowledgments she thanked her brother Marc whose "involvement in radical causes, led me to explore the history of American radicalism in the hope of clarifying my own political ideas." In her senior year, she also signed a manifesto, along with Elliot Spitzer and six others, called the "Campaign for a Democratic University," arguing that students should have a greater voice in university governance — according to the New York Times, however, this effort fell apart when its promoters left for spring break.

During one college summer, Elena worked as an intern for Representative Ted Weiss, a Democrat from New York and during another college summer worked as an assistant press secretary for a congresswoman, Rep. Holtzman. Elena graduated Princeton in 1981 with the highest honor of summa cum laude and hoped for a career in academia, public service and the law—much like her father. She first received a fellowship however and went to England for a year to study philosophy at Worcester College at Oxford, where she received a Masters of Philosophy degree.

After returning from Oxford Kagan attended Harvard Law School and, just as in college, performed well, making law review at the end of her first year. One of her law school classmates, Jeffery Toobin, who is now a legal correspondent for The New Yorker and CNN, says that during a time of deep political divisions at Harvard, Kagan was "[s]omeone who could always navigate easily between and among factions."

Kagan graduated Harvard Law magna cum laude and went on to clerk: first, for Judge Abner Mikva of the United States Appeals Court for the District of Columbia and, then, for Justice Thurgood Marshall at the United States Supreme Court. As a clerk for Justice Marshall, Kagan has said she occasionally disagreed with Marshall's legal analysis but greatly respected him. In an article published by the New York Times on May 12, 2010 by Charlie Savage, the Times related a story in which Marshall called Kagan a "knucklehead" after he had asked her to write a fiery dissent in a school busing case and Kagan told him that she thought his legal analysis was wrong, returning insufficiently pungent draft opinions.

Outside chambers, Kagan joined the male clerks in weekly pickup basketball games where she was said to play guard and be a "plucky" player. In 1988, after finishing up her clerkships, Elena wanted to work for a Democratic administration but when George Bush won the presidency she decided instead to work for a private law firm as a litigator, where she remained only two years before joining the faculty at the University of Chicago Law School.

Kagan joined the faculty of the University of Chicago Law School as an assistant professor in 1991- the same year that President Obama, then a state senator, began teaching at the same institution. Despite reservations about the depth of her publishing, Kagan became a tenured professor of law in 1995.

While at Chicago, she published articles about the government's role in regulating speech as well as a review on a book discussing the judicial confirmation process.

Kagan left the University of Chicago in 1995 to work in the Clinton White House. As a domestic policy advisor, Kagan drafted memos on a wide range of policy matters. For instance, in May 1997, Kagan co-authored a memo urging President Clinton to support a ban on late-term abortions to sustain his credibility on the issue. Kagan's greatest achievement, however, was drafting legislation to give the Food and Drug Administration regulatory authority over the tobacco industry, which formed the basis for a 2009 bipartisan bill passed by Congress.

On June 17, 1999 President Clinton nominated Kagan to the U.S. Court of Appeals for the District of Columbia Circuit. The Republicans stalled her confirmation and her nomination lapsed. Kagan returned to academia in 1999 as a visiting professor at Harvard Law School. Two years later, she was named a full professor - and, two years after that, Dean.

Kagan was appointed Dean of Harvard Law School in 2003 by then University President, Lawrence Summers. Kagan was the first woman to fill the position. Kagan's five-year tenure at Harvard Law is notable for its faculty expansion, improved campus infrastructure and reaching out to conservative professors. Kagan broadened the ideological spectrum of the faculty and once held a dinner to honor Justice Scalia.

Kagan's biggest controversy while Dean concerned an episode involving the opening of the law school campus to military recruiters. In 2002, the Pentagon threatened to withhold federal funding from universities that refused to allow military recruiters on campus. For decades, Harvard Law School had an anti-discrimination policy in place that prevented employers from using school resources if they discriminated on the basis of sexual orientation. Until 2002, while military recruiters were allowed on campus, they were not allowed to use the school's career-services office to meet with students. In 2002, fearing the loss of federal funding, the law school allowed the military full access to its students. In 2004, the Third Circuit Court of Appeals ruled that threatening schools with the loss of federal funding in order to force their compliance with military recruiters was unconstitutional.

Kagan, now dean, removed the JAG representatives out of the official recruiting pool. The Supreme Court eventually overturned the Third Circuit's decision, holding that the withholding of federal funds on this basis to be constitutional. Before the decision came down, Kagan had once again allowed recruiters back in, under threat from the Department of Defense to withhold $400 million in funding—none of which goes to the law school, but dollars that the medical school and the greater university depended on.

Dean Kagan's decision to allow recruiters to return, while the military maintained its "Don't Ask, Don't Tell" policy, angered professors and activists on campus. Students staged a sit-in. Protesters placed pink soldiers around campus. Among those upset was Kagan herself, who declared, "The government shouldn't use the power of the purse strings to force educational institutions to renounce their most foundational principles."

Kagan wrote to students saying that she believed "discrimination against gays and lesbians seeking to enter military service is wrong—both unwise and unjust." At the same time, she repeatedly reiterated her praise and respect for a career in the armed forces, calling it the most deeply honorable career she can imagine.

In 2005, as Dean of Harvard Law, Kagan co-signed a letter that laid out major concerns and criticism with a legislative amendment that Sen. Lindsey Graham had authored that would have denied federal courts jurisdiction to consider habeas corpus petitions filed by prisoners at Guantanamo Bay. The amendment also would have limited the judicial review of decisions of the Combatant Status Review Tribunals and Military Commissions. The letter noted that: "[I]n the past our government has rightly challenged dictatorships as fundamentally lawless. The same standard should apply to our own government."

In 2007, Kagan was chosen as a finalist for President of Harvard University, but the trustees chose Drew Gilpin Faust instead. Kagan was reportedly disappointed for not being chosen as Harvard's first female president.

Two years later with a Democratic president back in the White House, President Obama nominated Elena Kagan to be the first female Solicitor General. Her first oral argument before the Court was the reargument in Citizens United v. Federal Election Commission.

While there was talk of Solicitor General Kagan being Obama's next pick for a Supreme Court nominee, when Justice Souter retired in May 2009, Obama picked Sonia Sotomayor to replace him. A year later, however, Kagan became Obama's nominee after the retirement of Justice John Paul Stevens.

Kagan's confirmation was without controversy. Republicans were concerned that as a domestic policy advisor in the Clinton White House she had asked the American Congress of Obstetricians and Gynecologist to revise a statement it planned to release announcing that a panel of experts had found no circumstances in which the partial-birth abortion procedure was the only option for saving the life of the woman. Kagan had asked that the statement be revised to read that the procedure ""may be the best and most appropriate procedure in particular circumstances to save the life or preserve the health of the woman." Democrats, in turn, were concerned that Kagan had once expressed support of expanded presidential powers in a law review article. Nevertheless, on July 20, 2009, the Senate Judiciary Committee voted 13-6 to recommend her confirmation and on August 5 the Senate confirmed her with a 63-37 vote, with five Republicans voting in her favor. She took office two days later on August 7, 2010.

Justice Kagan's Jurisprudence

A Hip Justice
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 Kombat," 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.

Kagan's Dissents
Since Kagan had been the government's chief advocate in Supreme Court cases and had worked on many of the cases the Court was to consider when she joined the bench, Justice Kagan's first term on the Court was marked by frequent recusals. Kagan's first controversial opinion was her dissenting opinion, joined by the Court's more liberal justices, in Arizona Christian School Tuition Organization v. Winn. In Winn, the majority held that Arizona taxpayers could not bring a suit challenging an Arizona state tax credit used in part to subsidize scholarships at religious schools in purported violation of the Constitution's Establishment Clause because they lacked standing. Justice Kagan accused the majority of shielding all state subsidies for religion from review by making a novel holding that tax credits are to be treated differently for standing purposes than appropriations of tax dollars.

Justice Kagan also authored a four-justice dissenting opinion in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, which invalidated an Arizona law that sought to level the playing field for publicly financed candidates for public office by giving them extra money up to a certain amount when privately financed candidates spent more money than the publicly financed candidates had received. Justice Kagan accused the majority of playing a "game" with democracy and thwarting efforts by legislators who believe that the "greatest hope of eliminating corruption lies in creating an effective public financing program, which will break candidates' dependence on large donors."

Unanimous Opinions
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.

Justice Kagan authored the unanimous opinion in Miller v. Alabama (2012), wherein the Court held that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on “cruel and unusual punishments.” The two defendants at issue in Miller were 14 years old when they were convicted of murder. The Court had already held in Roper v. Simmons (2005) that juveniles could not be sentenced to death and in Graham v. Florida that juveniles could not be sentenced to life without the possibility of parole for non-homicide offenses. Justice Kagan explained that given that children's "‘lack of maturity’ and ‘underdeveloped sense of responsibility’ lead to recklessness, impulsivity, and heedless risk-taking . . . . [t]hey 'are more vulnerable . . . to negative influences and outside pressures,' including from their family and peers; they have limited 'contro[l] over their own environment' and lack the ability to extricate themselves from horrific, crime-producing settings." Under Justice Kagan's rationale juveniles could be sentenced to life sentences but only after a judge was permitted to consider the defendant's age during sentencing (the mandatory life sentence statute at issue did not permit such considerations). Chief Justice Roberts, joined by justices Scalia, Thomas and Alito dissented, arguing that sentence juveniles to a mandatory life sentence could not violate the Eighth Amendment's prohibition against "cruel and unusual" punishment because it was not unusual. Rather, at the time of the Miller decision, they argued, "2,500 prisoners were serving life sentences without the possibility of parole for murders they committed before the age of 18 . . . .  2,000 of which received that sentence because it was mandated by a legislature."

Off the Bench
Elena Kagan is a New York Mets fan. She enjoys hunting and has hunted birds and antelope with Justice Scalia on multiple occasions. She is a comic book fan and an avid fan of comic-book based action films, claiming that she has seen them all and that her favorite film is "The Avengers." She is also a fan of frozen yogurt. After joining the Court she had a frozen yogurt machine installed in the Court cafeteria. She is the only sitting justice to have never married. She has no children.