Thinking Citizen Blog — US Supreme Court (VIII): Elena Kagan
Thinking Citizen Blog — Saturday is Justice, Freedom, Law, and Values Day
Today’s Topic: US Supreme Court (VIII): Elena Kagan — a pioneer, a liberal, appointed by Obama in 2010
First woman to be Dean of Harvard Law School (2003–2009). First woman to be Solicitor General of the United States (2009–2010). Fourth woman to be appointed to the Supreme Court. Her nomination was approved 63–37 (with 5 Republicans supporting her, and 1 Democrat opposing.) Because of her role as Solicitor General (the federal government’s chief litigator) she recused herself in 28 out of 78 cases in her first year. She has recently been the most moderate member of the liberal wing of the court with a Martin Quinn score of -1.69 for the 2019–2020 term (on a scale of -4 to +4 from most to least liberal). By comparison Sotomayor is a -3.5 and Thomas a +3.7. Ginsburg was a -2.8 and Breyer a -1.9. Experts — please chime in. Correct, elaborate, elucidate.
BACKGROUND: New York City, Princeton, Harvard, Oxford, DC, Chicago, Cambridge
1. Born in Manhattan, father was a lawyer, her mother a school teacher. Grandchild of Russian Jewish immigrants. President of her high school student government. Summa cum laude graduate of Princeton, editorial chair of the Daily Princetonian, master’s in philosophy from Oxford, magna cum laude graduate of Harvard Law School, supervisory editor of the Harvard Law Review.
2. Clerkships: Abner Mikva of the US Court of Appeals for the District of Columbia Circuit (1987), then Thurgood Marshall of the Supreme Court (1988)
3. DC jobs included: special counsel to the Senate Judiciary Committee (1993). Associate White House Counsel under Clinton (1993–1995), Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council, 1997–1999. Nominated to the US Court of Appeals in 1999 but the nomination lapsed at the end of the term.
NB: Academia: 1991 assistant professor, University of Chicago, 1995, gets tenure. 1991, full professor Harvard Law School, 2003, made Dean. Finalist for Presidency of Harvard University. Loses out to Drew Faust in 2007.
SOLICITOR GENERAL OF THE UNITED STATES, 2009–2010
1. Unusual but not unheard of: she was appointed without ever having argued a case before the Supreme Court, or any court for that matter.
2. As Solicitor General her first of six cases was by far the most famous and she lost: Citizen’s United in a 5 to 4 decision.
3. She won four of the six cases: Salazar v Buono (establishment clause), US v Comstock (necessary and proper clause), Holder v. Humanitarian Law Project (Patriot Act), Fee Enterprise Fund v Public Company Accounting Oversight Board (separation of powers).
SUPREME COURT, 2010 — PRESENT
1. Gerrymandering: “Kagan wrote for the majority in Cooper v Harris (2017) striking down the configuration of two of North Carolina’s congressional districts. The Court held the districts’ boundaries were unconstitutional because they relied excessively on race and did not pass the strict scrutiny standard of review. In a footnote, Kagan set forth a new principle, that congressional districts drawn with race as the dominant factor may be found to be unlawyful even if they have another goal, such as sorting voters by political affiliation.”
2. Agreement with Breyer was 90% in the last term, with Ginsburg, 88%, with Sotomayor 87%.
3. With Clarence Thomas 50%, Samuel Alito 55%, and Chief Justice Roberts 78%.
NB: To me, the agreement rates with members of the conservative wing of the Court is a useful reminder that it is easy to overstate the level of disagreement on the Court.
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PDF with headlines — Google Drive
YOUR TURN
Please share the coolest thing you learned in the last week related to justice, freedom, the law or basic values. Or the coolest, most important thing you learned in your life related to justice, freedom, the law, or basic values. Or just some random justice-related fact that blew you away.
This is your chance to make some one’s day. Or to cement in your mind something that you might otherwise forget. Or to think more deeply about something dear to your heart.
