Elena Kagan: Getting to know the newest member of the Supreme Court

July 8, 2013

Elena Kagan(Editor’s note: Over the next nine weeks, we’ll be profiling each of the sitting Supreme Court justices currently on the bench.)

Since we’re going in reverse order of seniority, the first justice we’ll be covering in this series is Justice Elena Kagan.

First, the basics:

Kagan was born in New York City on April 28, 1960, the middle of three children.  Raised in the Jewish faith, Kagan insisted on having a ritual bat mitzvah at her Orthodox synagogue – something that had never been done there before and that was “unheard-of” in Orthodox Judaism at the time.  Currently, Kagan identifies with Conservative Judaism.

In 1981, she graduated summa cum laude from Princeton with a bachelor’s degree in history; in 1983, Kagan earned a Masters in Philosophy from Worcester College in Oxford, England.

Kagan attended Harvard Law School, where she became supervising editor of the Harvard Law Review; in 1986, she graduated magna cum laude.

In 1988, Kagan clerked for Justice Thurgood Marshall before later going into private practice.  In 1991, she became an assistant professor at the University of Chicago Law School, becoming a tenured professor of law in 1995.

Later, she left academia to work as an Associate Counsel for President Bill Clinton, who nominated Kagan to serve on the D.C. Circuit of Appeals.  Her nomination lapsed because the Senate Judiciary Committee scheduled no hearing.

After the lapse of her nomination, Kagan returned to academia, finding a position as a visiting professor at Harvard Law School.  In 2001, she became a full Professor of Law, and in 2003, she was became Dean of the school.

Kagan became President Barack Obama’s Solicitor General in 2009, becoming the first female to fill the role in U.S. history.

After Justice John Paul Stevens retired in June of 2010, Kagan was selected by President Obama to succeed him.  After a relatively uneventful confirmation process, Kagan was sworn in on Saturday, August 7, 2010.  Kagan was the first Supreme Court justice appointed without any prior experience as a judge since Chief Justice Rehnquist’s appointment in 1972.

During her first term, Kagan was recused in 28 out of the 82 cases on which the Court ruled.  Her first opinion, Ransom v. FIA Card Services, was a largely uncontroversial bankruptcy ruling that found only Justice Scalia dissenting.  She also did not break from the other liberal justices on any divided ruling.

However, during the next term (October Term 2011), Kagan departed from her liberal colleagues in three divided rulings: Cavazos v. Smith, Kurns v. Railroad Friction Products, and Taniguchi v. Kan Pacific Saipan.

Kagan joined with the conservatives in the 6-3 Cavazos ruling (the “shaken baby case”), which reinstated the criminal conviction of the grandmother for the death of her seven-week-old grandson (her sentence was later commuted by the Governor of California).

Kurns was another 6-3 ruling that saw Kagan alone joining the conservatives; the decision held that a widow’s product liability claims against her late husband’s former employer, a railroad carrier, were preempted by federal law, thereby dismissing them.

In Taniguchi, yet another 6-3 case, the Court held that the cost of document translation is not within the definition of “compensation of interpreters” under a federal law allowing recovery of such costs to the prevailing party in a lawsuit.

This most recent term saw Kagan depart from her liberal colleagues in only one case: Chaidez v. U.S.

Nevertheless, the decision, which was written by Kagan herself, was also joined by Justice Breyer, making Kagan’s vote less of a departure from the Court’s liberal bloc.

What can we glean from these cases about Kagan’s judicial philosophy?  Not much, unfortunately.

Kagan’s tenure on the Court thus far is quite brief, and, especially with all of her recusals, we haven’t been able to figure out her exact judicial philosophy just yet.

Luckily, this most recent term has seen her assert herself more so than in the previous two terms. For example, during oral arguments in U.S. v. Windsor, Kagan garnered audible gasps from the audience when she read from the House Report on the 1996 Defense of Marriage Act that Congress’s purpose behind the Act was “to express moral disapproval of homosexuality.”

This past term has also seen Kagan side with liberals more reliably, even in rulings that find the liberal justices in smaller minorities than four.

Thus, while we don’t have a lot to gauge Kagan with right now, it seems very likely that she’ll give much more insight into her judicial views in the terms to come.