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message 1: by Bentley, Group Founder, Leader, Chief (new)

Bentley | 44207 comments Mod
This thread is dedicated to the discussion of Justice Elena Kagan (112) and all related subjects.


Elena Kagan -- policy adviser in the Clinton White House, dean of Harvard Law School, and Solicitor General in the Obama administration -- won approval from the Senate on August 5, 2010 to succeed Justice John Paul Stevens as an associate justice on the U.S. Supreme Court. She took her oaths of office on August 7, 2010 to become the 112th justice and only the 4th woman to serve on the high court. Kagan brings to the Court a raft of academic and political experience paired with a noticeably thin paper trail; she never held judicial office and rarely shared personal opinions. Kagan possesses a strategic world- view while maintaining an expert "poker-face." Kagan's path of ascent carried her to the pinnacle of academic institutions, including Princeton, Oxford, University of Chicago, and Harvard.

Her story began in a third-story apartment on Manhattan's Upper West Side with her parents and two brothers. Her mother worked as an elementary school teacher; both of her brothers would become educators. While she would have a future in teaching, and indeed during confirmation hearings she described herself as an excellent teacher, the argumentative dynamism of the law suited her best. Her early model was her father, a World War II veteran who graduated Yale Law School. He represented renter associations and community boards in negotiations with real estate and development interests. He imparted to his daughter by example a strong inclination toward social involvement and an appreciation of the power of a likable persona and tactful warmth. Kagan's Jewish heritage richly colored her childhood and occasioned early moments of distinction. Family and friends remember clashes she had with her Orthodox rabbi in which she insisted her bat mitzvah include a formal component in the synagogue. Naturally she settled on a deal with the rabbi acceptable to all sides.

In the cultured, intellectually progressive environment where she grew up, her feisty independence paired with her canny diplomacy ultimately proved worthy qualities to possess. Kagan commented little about her childhood, although she expressed a general admiration of her parents and surroundings while describing in more detail her activities and habits. She enjoyed literature and intelligent conversation, smoked but never drank or partied, and appreciated friendships that included intellectual engagement. The happy embrace of the value for intellectual endeavor held by her family and in her surrounding environment underscored her whole childhood. Without a doubt she fully absorbed social expectations to excel intellectually, to argue rigorously, and to digest an impressive library of famous and influential books. The studious regime pleased her, and she recalls with particular affection rereading one of her favorite books, Jane Austen's Pride and Prejudice, every year. Her elementary and high school peers shared more distinct memories. At Hunter College High School, still one of New York's elite public schools and entered only by way of high exam scores, they remember that she stood out as exceptionally bright and ambitious among a crowd of talented students. She ran successfully as student body president and impressed peers with her self-confident demeanor and thoughtful bearing in meetings and assemblies. These qualities were not lost to her either; and, peers affirmed that before the end of high school, Kagan talked about her desire to be a Supreme Court justice.Further, she already had in her mind strategic thoughts about how to stake a political future. Under her senior yearbook photo, where she posed in judicial robe and gavel in hand, she quoted Justice Felix Frankfurter, “Government is itself an art, one of the subtlest of arts.”

Matriculating at Princeton University in 1977, Kagan's undergraduate experience attested to her sharp mind and proved the period most revealing about her political and world-view opinions. Writing for The Princetonian quickly became a staple of her college life. She gained editorial influence and avidly mingled with a circle of friends with auspicious careers ahead, including future New York governor Eliot Spitzer and Bruce Reed, lead domestic policy adviser for President Bill Clinton. In contrast to the lightly satirical writing of her companions, Kagan remained "determined to have a serious discussion about the nation’s problems" according to Reed. In one column, on her wish for "real Democrats," she reflected on the men and women of her Upper West Side neighborhood "committed to liberal principles and motivated by the ideal of an affirmative and compassionate government." On Election Night 1980, after spending the summer on Liz Holtzman's campaign for Senate, she lamented Ronald Reagan's victory as president and Holtzman's loss to Alfonse D'Amato. While she enjoyed her editorial position, academics remained at the forefront to Kagan and she displayed a remarkable intensity for all of her work. She wholeheartedly pursued her degree in history and graduated summa cum laude, received the esteemed Daniel M. Sachs Class of 1960 Graduating Scholarship, and produced a 153-page thesis on the decline of the Socialist Party. Her thesis adviser, Prof. Sean Wilentz, grasped early that she had a prodigious mind and viewed her as ripe to become a leading intellectual. Friends noted she appeared drawn to a career in academics, law, and politics, and after her senior year she accepted a graduate fellowship to study philosophy at Worcester College, Oxford.

Upon her return, Kagan entered Harvard Law School and earned a place on the law review. Amidst the sharp political divisions pervasive on campus, Kagan had to employ careful diplomacy, which colleagues remark she achieved with astounding competence and ease. By her third year she rose to articles editor of the law review, and in 1986 graduated summa cum laude. Kagan clerked in 1987 for Judge Abner Mikva of the United States Court of Appeals for the District of Columbia. The next year she clerked for Justice Thurgood Marshall of the U.S. Supreme Court. When her clerkship ended, she wanted to work for a Democratic administration but the election of George H.W. Bush ended that hope. Instead she practiced law at the D.C. firm of Williams & Connolly.

After gaining two years of experience, and drawn to neither the high-salary nor the commercial firm environment, Kagan joined the faculty of the University of Chicago Law School. She began as an assistant professor in 1991, the same year Barack Obama arrived to lecture. Her colleagues reported positively about her, while noting her characteristic tendency towards high focus and high expectations. The dean who hired her, Geoffrey Stone, called her an instant success and said that students admired her, even after her rigorously demanding class work. Sharing a defining insight about Kagan, Prof. Richard Epstein observed, "there was this desperate desire to get ahead of the world and make a mark for herself.” So enwrapped could she become with her work that one professor noticed that she would occasionally forget to turn her car engine off when lost in thought. When considering whether to grant Kagan tenure in 1995, some faculty held reservations because of her limited publishing, but they decided her reputation as a legal ace more than compensated for this.

Over the course of her five years at Chicago, Kagan published three articles, one on hate speech and pornography regulation, another on "Government Motive in First Amendment Doctrine," and a review of Steve Carter's book discussing the judicial confirmation process, which would come up later in her own confirmation hearings. However, shortly after receiving tenure at Chicago the Clinton administration offered her a position she could hardly refuse. Judge Mikva, now chief legal counsel to the Clinton White House, had been greatly impressed by the young Kagan during her clerkship and asked her to join his White House team in 1995. Kagan found the invitation to join the administration irresistible and took leave from Chicago. She resigned from the White House in 1996 and planned to return to Chicago; but before she had the chance, Bruce Reed, her friend from Princeton and now Clinton's director of domestic policy, asked her to join as his top deputy. For Kagan, although accepting this position meant losing her tenure at Chicago, the opportunity in the administration suited her desire for a political future. Most importantly, proximity to the White House could yield a judicial appointment.

In 1999, President Clinton nominated her to the federal appeals court for the District of Columbia, where she had clerked for Judge Mikva. The appointment languished as Republicans stalled her confirmation hearing. As Deputy Domestic Policy Adviser, Kagan earned her greatest distinctions for work on legislative efforts to give the Food and Drug Administration regulatory authority over the tobacco industry. While the plan was unsuccessful at the time, falling three votes short in the Senate, it formed the basis for a regulatory bill passing in 2009. Having won the hard- fought support of key Republican senators including John McCain and Bill Frist, many from both parties applauded her skills at drafting constructive legislation and achieving consensus. Reed reflected that, "She brought Republicans and Democrats together on the toughest, most contentious issue in the tobacco debate." She built a reputation for giving ardent and sometimes brusque backing to the President's policy initiatives, which made her unpopular with some people yet also won respect from those who entrusted her with responsibility.

Kagan left the White House in 1999 and returned to academia. She first looked to return to Chicago but the school, concerned about her academic commitment, declined to re-instate her. Shortly thereafter Harvard Law School brought her on as a visiting professor and two years later named her a full professor. In 2001 she wrote an article for the law review on the role of aiding the president in forming regulatory and administration policy titled "Presidential Administration." This won the American Bar Association's award as the top scholarly article on administrative law for the year and contributed to Kagan's rising reputation at Harvard. In 2003, Harvard's president Lawrence Summers appointed Kagan dean of the law school, the first woman to hold this position. At the time, the law school was widely viewed as dysfunctional, beset with sharp ideological divides that stalled new hiring, aging facilities requiring new funding, and a curriculum that desperately demanded updates. Kagan energetically set herself the tasks at hand, and in her five years as dean achieved admirable results. Under her leadership, the school exceeded fundraising expectations, expanded its faculty size dramatically, and made significant strides toward building an academic climate that was at the same time more ideological diverse and socially harmonious. In its April's Fool's edition headline, the Harvard Law Record pithily summed up her activity, "Dean Kagan Hires Every Law Professor in the Country." In the process of reforming the school's curriculum, she attracted leading professors to come from other universities and managed to draft an instructional program with majority support. Prof. John Manning, one of her new hires who later succeeded her as dean, explained, “[s]he would have the corporate law people, then the public law people, then the criminal law people to her house for dinner and they would talk about it,” eventually working out practicable conclusions. This pragmatic and coalition-building style of leadership became her signature, marking a lesson from her White House reputation as a forceful consensus builder.

message 2: by Bentley, Group Founder, Leader, Chief (new)

Bentley | 44207 comments Mod
Elena Kagan - Biography - cont'd

During her deanship, Kagan backed a university policy of disallowing military recruiters on campus, arguing that the military's "Don't Ask, Don't Tell" policy discriminated against gays and lesbians. She supported a lawsuit brought by several leading law schools against the policy. In a stunning rejection, however, the Supreme Court unanimously upheld the policy.

With the return of a Democratic administration, the White House again beckoned. On January 5, 2009 President Obama announced he would nominate Kagan as Solicitor General. She was confirmed on March 19, 2009 by a 61-31 vote. Up to this point she had never argued a case in the high court, but she soon had her change in Citizens United v. Federal Election Commission. The Supreme Court decided the case 5-4 against the government, triggering disapproving remarks by President Obama and focusing more attention on the role of Kagan as legal advocate of the administration.

Although Kagan was first touted as a possible Court nominee after Justice David Souter's resignation in May 2009, the slot vacated by Justice John Paul Stevens in 2010 proved Kagan's opening. Kagan received the strongest boost of support from her base in academia, as the deans of over one-third of the country's law schools wrote her an open letter of endorsement. Outside of the academic cloister, many observer expressed concern that she had no record as a judge and vaunted the importance of a candid confirmation hearing. Kagan's book review on the confirmation process, which bemoaned its characteristic lack of substantial legal discussion, invited the opportunity for Senators to press her for details. Whatever her ideal view of the confirmation process, however, she recognized the reality of falling into political traps and tactfully steered clear of revealing pronouncements. Instead she described herself as technical, reasonable, and open-minded. She pledged that as a judge she would form opinions based solely on legal arguments and precedent. A few topics raised hairs on both sides of the aisle. Conservatives worried about her apparent politicizing of scientific findings to support partial birth abortion; more left-leaning liberals worried about her acceptance of wide executive powers. Yet with a strong Democratic majority in the Senate, her confirmation never was in doubt. On July 20 she passed through the Senate Judiciary Committee on a 13-6 vote; and, on August 5 she received a 63-37 confirmation vote from the Senate, largely along party lines.

Kagan brings to the Court a sharp academic mind and high-level, policy-making experience. Her friend, Walter Dellinger, a former acting solicitor general in the Clinton administration, declared that "Elena is open-minded, pragmatic and progressive." From her earliest inclinations towards intelligent conversation to her respected scholarly articles, she has displayed open-mindedness based on argumentation and reasoned thought. Whether smoothing out disputes with her childhood rabbi or building a winning alliance among sharply divided Harvard academics, her talent for pragmatic leadership made her a useful ally even to those who found her intensity unsettling. Three distinct qualities--open- mindedness, pragmatism, and progressivism--remain Kagan's hallmarks. Moreover, the combination characterizes an emerging type of judicial ideal among liberals that may influence the Court for years to come.


Elena Kagan. The Oyez Project at IIT Chicago-Kent College of Law. 03 November 2011. .

Associate Justice Elena Kagan

message 3: by Bentley, Group Founder, Leader, Chief (last edited Nov 15, 2011 06:50PM) (new)

Bentley | 44207 comments Mod
Personal Information

Born: Thursday, April 28, 1960

Childhood Location: New York City

Religion: Jewish

Father: Robert Kagan

Father's Occupation: lawyer

Mother: Gloria Gittelman Kagan

Mother's Occupation: grade school teacher

Family Status: upper middle class

Position: Associate Justice

Seat: 6

Nominated By: Obama

Commissioned on: Friday, August 6, 2010

Sworn In: Saturday, August 7, 2010

Length of Service: 1 year, 2 months, 27 days as of November 3, 2011 - this length of service continues to accrue.

Home: Massachusetts

message 4: by Bentley, Group Founder, Leader, Chief (new)

Bentley | 44207 comments Mod
Elena Kagan's First Year Report Card

message 5: by Bentley, Group Founder, Leader, Chief (last edited Nov 03, 2011 10:36PM) (new)

Bentley | 44207 comments Mod

Trisha B. Anderson Harvard 2010
Andrew M. Crespo Harvard (2008) 2010
Allon S. I. Kedem Yale (2005) 2010

Elizabeth Prelogar
(Barchas) Harvard (2008) 2010

message 6: by Bentley, Group Founder, Leader, Chief (new)

Bentley | 44207 comments Mod
Interesting Site with various links:

message 7: by Alisa (new)

Alisa (mstaz) Bentley, can you edit the bio you posted about to remove he length of service date? That should remain open for those still on the bench. Thanks.

message 8: by Bentley, Group Founder, Leader, Chief (new)

Bentley | 44207 comments Mod
Alisa wrote: "Bentley, can you edit the bio you posted about to remove he length of service date? That should remain open for those still on the bench. Thanks."

Yes, I indicated that this was an open item and that the length of time was as of November 3, 2011.

message 9: by Alisa (last edited Dec 29, 2011 03:35PM) (new)

Alisa (mstaz) Great article on Justice Kagan from New York magazine. It is too long to post in its entirety so am posting the link to the article:

Her Honor

People who think Justice Elena Kagan should recuse herself from the looming “Obamacare” case might want to take a closer look at her first term.

By Dahlia Lithwick

Two excerpts I found particularly insightful:

Since joining the Court, Kagan has been at pains to avoid the appearance of conflict and driving ideology. In fact she’s avoided personal conflict altogether, limiting her public appearances, giving no inflammatory speeches, praising her colleagues, and setting no fires. She has resisted classification in almost every way, and the caricatures of her as an unhinged lefty bomb thrower ignore over a year’s conduct as a justice.

Most Court experts believe the health-care case will be decided by a 6-3 or a 7-2 margin (upholding the act, if you want to call your bookie now), and that’s because for every Bush v. Gore, there are hundreds of cases that are not decided along party lines, and also because party lines don’t always begin and end at wanting to embarrass the president. Kagan may have been happy at the passage of health-care reform, just as each of the other eight justices had his or her opinion. If their opinions alone carry the day, there’s more to worry about here than just the fate of the Constitution’s interstate-commerce clause.

Kagan has leaned both left and right, and she is also quite possibly the last living acolyte in the Church of the Supreme Court’s Specialness. For her, the work of the Court isn’t a matter of crushing the opposition; it’s a matter of finessing it. Maybe she’s still relatively new. Maybe it’s that she hasn’t been entombed in a federal courthouse for decades. Or maybe law and politics really are essentially different enterprises. Kagan will not recuse herself from the health-care case, and that is as it should be. She will decide it as a member of a larger body, triangulating against the words of the Constitution and the constraints of prior precedent. The very existence of the Court depends on that.


At one level Kagan keeps demonstrating that she can subordinate her name and even her voice to the institution as a whole. But in a deeper way, in declining to write for herself alone, she is also refusing to highlight areas in which she’s open for doctrinal business. She is deciding her cases one at a time, without hints or promises about where she may be moved down the road. Nowhere was this more apparent than last month, when Kagan voted with the Court’s conservative bloc in a case concerning a grandmother convicted of shaking a baby to death. The appeals court freed the grandmother, finding the jury’s conclusion irrational. Kagan broke with the left wing of the Court and silently joined the conservative majority in an unsigned opinion reversing the decision.

Kagan may prove more conservative than her predecessor Stevens, or this can be an outlier. Either way, the justice isn’t talking. That’s a rather conservative quality, and it’s generally the Court’s conservatives who speak reverently of judicial restraint and humility. While some may find her close-to-the-vest behavior a strategy in itself, it might instead be proof that Kagan is a purist. One with a real commitment to the fundamental purpose of the Court: to weigh each case independently and impartially.

It’s an impossibly fine line Supreme Court justices are expected to walk: They’re supposed to interact with the public, yet do nothing to show that they have prejudged a dispute; to live out in the sunlight, but convey the impression that nothing matters to them but their holy connection to the constitutional text; to think and write deeply about important legal questions, but to approach each case with the innocence of a newborn kitten.

The author of the article is also a book author:
Dahlia Lithwick Dahlia Lithwick

message 10: by Bentley, Group Founder, Leader, Chief (new)

Bentley | 44207 comments Mod
Great article Alisa.

message 11: by Alisa (new)

Alisa (mstaz) Very insightful, I finally read the whole thing today. I think it will be very interesting to see how she develops as a Justice.

message 12: by Bentley, Group Founder, Leader, Chief (last edited Dec 29, 2011 06:46PM) (new)

Bentley | 44207 comments Mod
Yes so far, so good.

message 13: by Bentley, Group Founder, Leader, Chief (last edited Oct 20, 2012 07:14AM) (new)

Bentley | 44207 comments Mod
Elena Kagan and Scalia like to hunt together - who knew?

This is a photo of Elena Kagan and John Roberts at her investiture.

Elena Kagan Says She Likes To Hunt With Antonin Scalia

Source: The Huffington Post

KNOXVILLE, Tenn. -- Supreme Court Justices Elena Kagan and Antonin Scalia are ideological opposites, yet they share a pastime. They like to hunt together.

Kagan amused an audience Friday at the University of Tennessee College of Law in Knoxville with stories of how the conservative Scalia taught her to shoot fowl.

She said Scalia told her in the spring, "It's time to move on to the big game."

She said the two will go hunting in Wyoming this weekend and she hopes to bag an antelope.

Kagan, who was nominated by President Barack Obama and joined the court in 2010, expressed thanks to Justice Ruth Bader Ginsburg and former Justice Sandra Day O'Connor for blazing a trail for the women who followed them.

On the site - there is also a video of Scalia on why the Supreme Court is not political

message 14: by Alisa (new)

Alisa (mstaz) She hunts? Would never have guessed that.

message 15: by Bentley, Group Founder, Leader, Chief (new)

Bentley | 44207 comments Mod
Me neither. Interesting little tidbit - and I was not surprised that Scalia hunted - but Kagan and Scalia make very strange bedfellows. - Odd philosophic dynamics here.

message 16: by Alisa (new)

Alisa (mstaz) It's not a combination one would expect, that's for sure.

message 17: by Katy (new)

Katy (kathy_h) Dean Minow talks with Associate Justice Elena Kagan '86 at Harvard Law School

message 18: by Bentley, Group Founder, Leader, Chief (new)

Bentley | 44207 comments Mod
Terrific Kathy.

message 19: by Francie (new)

Francie Grice Elena Kagan: A Biography

Elena Kagan A Biography by Meg Greene by Meg Greene (no photo)


Elena Kagan can be considered a "wild card" in terms of how she will vote and affect Supreme Court decisions. While largely considered a liberal, her lack of a judicial "track record" and previous work as Solicitor General lend an air of uncertainty as to how she will react to upcoming cases that have proven highly divisive and controversial.

This full-length biography sheds light on Elena Kagan's life, covering her college years at Princeton and her experience in law school as well as her legal career, which eventually led her to a seat on the U.S. Supreme Court. Appropriate for high school, college, and adult readers, the book not only documents Justice Kagan's life, achievements, and the possibilities for the future, but also how Kagan is an inspiring role model who demonstrated independence, determination, and high achievement throughout her career.

message 20: by Francie (new)

Francie Grice Justice Elena Kagan, Interview

National Portrait Gallery, Smithsonian Institution

Published on Mar 16, 2015

Justice Elena Kagan was interviewed by Jan Smith, for the Smithsonian's National Portrait Gallery. Justice Kagan is depicted in the "The Four Justices" painting by artist Nelson Shanks, along with Justices Sandra Day O'Connor, Sonia Sotomayor and Ruth Bader Ginsburg.

message 21: by Lorna, Assisting Moderator (T) - SCOTUS - Civil Rights (new)

Lorna | 2104 comments Mod
University of Chicago Law School Faculty Podcast February 2, 2015

In a conversation with David A. Strauss, Gerald Ratner Distinguished Service Professor of Law, US Supreme Court Justice Elena Kagan reflects on decision-making, persuasion, and hunting with Scalia. This event took place on February 2, 2015, at the University of Chicago Law School.

Steve Petteway, Collection of the Supreme Court of the United States

Link to University of Chicago Law School podcast:

Discussion Topics:

1. Discuss Justice Kagan's view of how the Supreme Court takes each case individually and weighs its merits before coming together as a group.

2. Discuss Justice Kagan's view of the Supreme Court Justices' ability, after hearing cases year after year, enables each of them to recognize similar issues contributing to an internal consistency.

3. Discuss Justice Kagan's view of the caliber of lawyering she sees before the Supreme Court and why she feels that criminal defendants often receive the poorest quality of legal representation.

Source(s): University of Chicago Law School, Oyez

message 22: by Lorna, Assisting Moderator (T) - SCOTUS - Civil Rights (new)

Lorna | 2104 comments Mod
U.S. Supreme Court Justice Elena Kagan highlights importance of compromise at UW-Madison discussion

By SHELLEY K. MESCH September 9, 2017

U.S. Supreme Court Associate Justice Elena Kagan will be on the UW-Madison campus Friday, to talk about her life in law.

In the year after Justice Antonin Scalia’s death, the U.S. Supreme Court was forced to make decisions based on compromise, Associate Justice Elena Kagan told an audience at UW-Madison Friday.

While it wasn’t the court’s job to be a model for civil discourse, Kagan said, the effort to avoid split decisions made members of the court come to understandings that may have seemed impossible.

In an hour-long discussion at the Wisconsin Union Theater, Kagan spoke of her rise to her seat on the high court, the influence of her parents and the importance of compromise when deciding on divisive issues.

“There are not many people, I think, who don’t look at the place we’re in (politically) and see us as very divided on quite a number of issues,” Kagan said. “You can see the discourse being pretty hot and often depressingly so.”

With an even-numbered court prior to Associate Justice Neil Gorsuch filling the ninth seat on the bench, accepting 4-4 ties on cases would make the court seem divided and incapable of getting its work done, Kagan said.

“I think we all made a very serious effort to try to find common ground, even where we thought we couldn’t,” Kagan said. “It sort of forced us to keep talking with each other.”

‘A place where we can agree’
Working toward common ground through continuous debate and discussion has bettered the court, and that work ethic shouldn’t be forgotten, Kagan said.

“I’m actually hopeful that the effects of it will continue now that we have a nine-person court in the sense that all of us will remember not to stop the conversation too soon,” she said. “All of us will remember the value of trying to find a place where we can agree, where more of us can agree.”

It wasn’t a lifelong dream for Kagan to practice law. While she was growing up in New York City, her father was a lawyer and his job didn’t seem interesting — there weren’t any of the dramatic court battles that you see on television. She said she only went to law school because she didn’t know what else to study.

It was at Harvard Law School that Kagan found her passion for the law. Nearly 25 years later, she was nominated by then-President Barack Obama and in 2010 became the fourth woman to serve on the Supreme Court.

UW Law School Dean Margaret Raymond introduced Kagan and led the discussion. The two have been friends since middle school, and both graduated from Hunter College High School.

When asking about the influence of Kagan’s family, Raymond referred to Kagan’s mother as “formidable.” Kagan agreed.

“Boy, my mother’s voice is in my head all the time … because she demanded things, but she taught you to demand things from yourself,” Kagan said. Her mother taught her the importance of effort, discipline and commitment, she said.

Kagan also had some advice for lawyers presenting their arguments before the Supreme Court: There is no right or wrong persona to have, be prepared to strengthen the weak points in your case, and know that sometimes the justices know the answers to their own questions.

“Often the justices aren’t really asking you questions,” Kagan said. “They don’t really care about the answers you give. They’re making points to their colleagues.”

Link to article:
Link to videotape:

Elena Kagan by Samuel B. Earnst by Samuel B. Earnst (no photo)

Source: Wisconsin State Journal

message 23: by Bentley, Group Founder, Leader, Chief (new)

Bentley | 44207 comments Mod
Thank you Lorna - a great photo of Kagan.

message 24: by Bentley, Group Founder, Leader, Chief (new)

Bentley | 44207 comments Mod
Thurgood Marshall remembered by Justice Kagan and other former clerks

“His voice is still in my head,” Justice Elena Kagan told the audience on Tuesday when asked how her former boss, Justice Thurgood Marshall, had affected her life. Kagan, along with three other former Marshall clerks, described a justice who demanded much from his clerks, but gave his time and knowledge generously in return. They also remarked on the peculiarity of working for, as one panelist put it, “not just a regular Supreme Court justice, but a living legend.”

In addition to Kagan, the event, which was hosted by the Supreme Court Historical Society, featured Harvard Law School professor Randall Kennedy, Judge Paul Engelmayer of the U.S. District Court for the Southern District of New York, and Judge Douglas Ginsburg of the U.S. Court of Appeals for the District of Columbia Circuit, who also moderated the panel.

The evening was filled with reminiscences about working for Marshall. The former clerks recalled Marshall’s fierce commitment to his values and his dogged pursuit of what he believed was right. As an example, Kagan pointed to Kadrmas v. Dickinson Public Schools, a case involving a schoolgirl in rural North Dakota whose family had to pay for her to take a bus to a school 15 miles away and who challenged the fee structure as a violation of the Constitution’s equal protection clause. Kagan told Marshall that it would be difficult for the schoolgirl to win, because the court’s prior cases suggested that the fee structure would be upheld under a lenient standard of review. Marshall rejected her analysis immediately; Kagan explained that he believed he was on the court to “make sure that people like Kadrmas got to school every day, and he was going to do what he could to make that happen.”

Kennedy told the story of Batson v. Kentucky, in which the court ruled that peremptory challenges used by prosecutors to strike jurors based solely on their race are unconstitutional. Kennedy explained that the court only agreed to hear Batson after Marshall had filed dissent after dissent from the court’s denial of certiorari in similar cases. Even after his colleagues finally agreed to hear the case and adopted his position, Marshall wrote a concurring opinion, arguing that the court wasn’t going far enough. Kennedy explained that Marshall’s willingness to constantly “push the envelope is what I admired about him.”

Engelmayer remembered City of Richmond v. J.A. Croson Co., in which the court ruled that Richmond’s plan to ensure that a certain percentage of construction contracts were awarded to minority-owned businesses was unconstitutional. Marshall was very distressed by the outcome and instructed his clerks to point out in his dissent the irony of the former capital of the Confederacy’s attempting to do something progressive and being shut down.

Marshall’s convictions would sometimes take him to surprising places. Kagan recalled Torres v. Oakland Scavenger Co., in which a group of Hispanic employees lost an employment discrimination case. Jose Torres’ name was left off the subsequent notice of appeal because of a clerical error, so he was unable to take part in the appeal. Marshall’s clerks believed that Torres should win, but Marshall ended up overruling them and writing the Supreme Court’s 8-1 decision against Torres. Kagan explained that “playing by the rules was one of the most important principles for [Marshall],” even if doing so produced undesirable results.

The panelists traced much of Marshall’s ideology to his time crisscrossing the Jim Crow south as an attorney for the NAACP. Engelmayer noted that it took a great deal of physical courage to work as a defense attorney representing black people in the south. He recalled Marshall telling stories of being moved between houses in the middle of the night for his protection and taking note of who was sleeping closest to windows in case a bomb was thrown into the room. According to the panelists, these experiences influenced Marshall’s decision to dissent in every capital case that came before the Supreme Court, because he had represented many black defendants who were executed or lynched.

Though Marshall witnessed many painful things in his career, each former clerk agreed that humor was one of the justice’s defining characteristics. During a discussion of the death penalty, Kagan remembered, Marshall declared that when one of his clients was sentenced to life in prison rather than condemned to death, “he absolutely knew that the guy was innocent.” Each former clerk described his or her first conversation with Marshall, all following a similar pattern. In Kagan’s case, Marshall called and asked, “So, you want a job?,” to which Kagan replied, “I’d love a job.” Marshall deliberately misheard her and replied, “Oh, so you have a job?” This kind of back and forth continued until Marshall warned his future clerks to prepare to write dissents, and then hung up.

During deliberations over a case, Marshall would tease and joke with his clerks. Kennedy once told Marshall that if he ruled the way he was intending, he would contradict one of his own earlier decisions. In response, Marshall asked Kennedy, “Do I have to be a damned fool all my life?” Likewise, Kagan recalled that, when told that he had to rule one way or another, Marshall often retorted: “There are only two things that I have to do: stay black and die.”

Clerking for Marshall was demanding and stressful, but the clerks were all able to step back and realize how much their boss meant to others. For Engelmayer, one such moment came when the justice took his clerks out for lunch. As their group walked into the dining room, everyone fell silent and stood up until Marshall motioned for them to sit down. Kennedy remarked on how intimidated he was when he first met Marshall face to face, in large part because he grew up hearing his father repeat a story about seeing Marshall argue a case in South Carolina challenging an all-white primary election. To Kennedy’s father, hearing Marshall referred to as “Mr. Marshall,” a title seldom given to black men in the Jim Crow south, made a lasting impression. At the end of Kennedy‘s clerkship, his father was able to meet Marshall and tell him about that argument in South Carolina.

Kagan closed the evening on a lighthearted note. On the last day of her clerkship, when Kagan’s parents came to the court, Marshall was nicer than he had been all year. “That was the only time I knew that he liked me,” she said.

This post has been updated to reflect that Kadrmas v. Dickinson Public Schools originated from a dispute in North Dakota, not Kansas.

Source: Scotus Blog

message 25: by Lorna, Assisting Moderator (T) - SCOTUS - Civil Rights (new)

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Kagan, Sotomayor say Supreme Court must steer clear of politics to protect legitimacy

By OLIVIA GAZIS October 5, 2018

On the eve of a Senate vote likely to result in the confirmation of Judge Brett Kavanaugh to the U.S. Supreme Court, two of the three sitting female justices said the court must guard its own reputation for being impartial, neutral and fair. Justices Elena Kagan and Sonia Sotomayor shared concerns that widespread polarization in the country's political environment could affect public perceptions of the court's legitimacy.

Speaking at a question-and-answer session during a conference at Princeton University dedicated to celebrating women, Kagan and Sotomayor did not directly address the prospect of Kavanaugh's confirmation but said there was value to maintaining a "middle position" on the court's bench.

"This is a really divided time," Kagan said. "Part of the court's strength and part of the court's legitimacy depends on people not seeing the court the way they see the rest of the governing structures of the country now."

Sonia Sotomayor and Elena Kagan (R), Associate Justices of the Supreme Court of the U.S., recieve applause during Princeton University's "She Roars: Celebrating Women at Princeton" conference in Princeton, New Jersey, U.S., October 5, 2018. DOMINICK REUTER / REUTERS

Their pre-scheduled appearance at the "She Roars" conference came just hours after Sen. Susan Collins, R-Maine, and Sen. Joe Manchin, D-Virginia, announced they would support Kavanaugh's nomination. The full Senate is expected to hold the final vote on Saturday.

"We have to rise above partisanship in our personal relationships," Justice Sotomayor said. "We have to treat each other with respect and dignity and with a sense of amicability that the rest of the world doesn't often share."

Sotomayor said she sought out "the good" in her colleagues and that the court's members had a practice of maintaining collegial relationships even in times of disagreement. "If you start from the proposition that there's something good in everyone it's a lot easier to get along with them," she said.

"It's just the nine of us," Kagan added. "We all have a vested interest in having good relations with one another."

The two justices, both Princeton graduates, were interviewed before an audience of more than 3,000 by another alumna, Heather Gerken, who currently serves as the Dean of Kavanaugh's alma mater, Yale Law School. Though she did not raise the allegations of sexual misconduct against Kavanaugh on Friday, Gerken had previously said in a statement she shared the "deep concern" of other Yale faculty members about his nomination.

The justices, both of whom were appointed to the court by former President Obama, also discussed their experiences as female trailblazers in their own fields and at Princeton, which first began accepting women undergraduates in 1969.

"You can't be a professional woman, even today, whether it's in law, in medicine, in any field, without having a moment where someone is going to treat you differently because you're a woman," Sotomayor, who graduated from Princeton in 1976, said.

Both justices dismissed the notion that they were interrupted more frequently than their male colleagues on the basis of their gender, as a recent study suggested.

"I don't feel that on the bench," Kagan said, adding that the statistics informing the study are more likely due to the fact that she and Sotomayor are relatively junior justices.

Kagan insisted that she, Sotomayor and Justice Ruth Bader Ginsburg "ask a lot of questions" and give lawyers "a good run for their money."

"None of us are shrinking violets," she said.


Elena Kagan A Biography by Meg Greene by Meg Greene (no photo)

Source: CBS News

message 26: by Bentley, Group Founder, Leader, Chief (new)

Bentley | 44207 comments Mod
Maybe this is one of the interviews that I was talking about on the other thread.

message 27: by Lorna, Assisting Moderator (T) - SCOTUS - Civil Rights (new)

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Elena Kagan Fast Facts


Here's a look at the life of Associate Supreme Court Justice Elena Kagan. She is the fourth woman to serve on the US Supreme Court.


Birth date: April 28, 1960

Birth place: New York, New York

Birth name: Elena Kagan

Father: Robert Kagan, attorney

Mother: Gloria (Gittelman) Kagan, teacher

Education: Princeton University, A.B., 1981, graduated summa cum laude; Worcester College, Oxford University, M. Phil., 1983; Harvard University, J.D., 1986, graduated magna cum laude

Religion: Jewish


Was editor of the Harvard Law Review and first female dean of Harvard University Law School.

Nicknamed "Shorty" by Thurgood Marshall. He was 6' 2"; she is 5' 3".
Taught at the University of Chicago Law School at the same time as future US President Barack Obama.


1986-1987 - Law clerk for Judge Abner Mikva, US Court of Appeals for the DC Circuit.

1988 - Clerk for Supreme Court Justice Thurgood Marshall.

1989-1991 - Associate with the DC law firm Williams & Connolly.

1991-1995 - University of Chicago Law School professor.

1993 - Senator Joe Biden appoints Kagan as the special counsel of the Senate Judiciary Committee. During this time Kagan works on Ruth Bader Ginsberg's Supreme Court confirmation hearings.

1995-1996 - Associate Counsel to US President Bill Clinton.

1997-1999 - Deputy Assistant to President Clinton for domestic policy. Kagan is also deputy director of the Domestic Policy Council.

1999 - Clinton nominates Kagan to the US Court of Appeals. Hearings are never scheduled, and the nomination lapses.

1999-2003 - Harvard Law School professor.

April 3, 2003-March 20, 2009 - Dean of Harvard University Law School.

January 26, 2009 - Obama names Kagan to be US solicitor general.

March 19, 2009 - Confirmed by the US Senate 61-31 to become the first woman to serve as US solicitor general, despite opposition by over 75% of Republican senators.

May 10, 2010 - Obama nominates Kagan to be a justice on the US Supreme Court.

June 28, 2010 - Kagan's Senate confirmation hearings begin.

July 20, 2010 - The Senate Judiciary Committee votes 13-6 to send her nomination to the full Senate for consideration.

August 5, 2010 - The Senate confirms Kagan as an associate justice of the US Supreme Court.

August 7, 2010 - Kagan is sworn in as the 112th Supreme Court Justice.

January 23, 2012 - The Supreme Court denies a request from Freedom Watch, a political advocacy group, that Kagan should recuse herself from the upcoming appeals over the constitutionality of health care reform. Kagan served as the Obama administration's top government lawyer handling appeals to the Supreme Court when the Patient Protection and Affordable Care Act was passed.

June 22, 2015 - The Supreme Court rules in favor of Marvel Entertainment against Stephen Kimble in a case that dealt with patent fees. The opinion of the court written by Justice Elena Kagan, includes several references to Spider-Man.

March 7, 2019 - Kagan appears before House lawmakers to voice the court's entrenched opposition to televising oral arguments. She acknowledges benefits to the public seeing the nation's highest court at work, but tells a House Appropriations subcommittee that, "If seeing [the court] came at the expense of the way the institution functioned that would be a very bad bargain. And I do worry that cameras might come at that expense."

June 21, 2019 - Kagan says that a 5-4 opinion that broke along ideological lines "smashes a hundred-plus years of legal rulings to smithereens." The case addressed when property owners can sue the government to claim its actions were an unconstitutional "taking." Under existing Supreme Court precedent, the plaintiff couldn't sue to challenge the taking until the state was given a chance to pay just compensation. The new decision holds that the plaintiff can sue in federal court as soon as the taking occurs. In her dissent Kagan says, "when a theory requires declaring precedent after precedent after precedent wrong, that's a sign the theory itself may be wrong."

June 27, 2919 - Reads a dissent following the 5-4 decision that gerrymandering is beyond the reach of the court. "The practices challenged in these cases imperil our system of government. Part of the Court's role in that system is to defend its foundations. None is more important than free and fair elections."

Link to article:


Elena Kagan A Biography by Meg Greene by Meg Greene (no photo)

Source: CNN

message 28: by Bentley, Group Founder, Leader, Chief (new)

Bentley | 44207 comments Mod
Thank you so much Lorna for the wonderful add.

message 29: by Bentley, Group Founder, Leader, Chief (new)

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Supreme Court blocks Trump from ending DACA in big win for Dreamers

Chief Justice John Roberts was the swing vote in the 5-4 decision, dealing a big legal defeat to President Trump on the issue of immigration.

By Pete Williams and Adam Edelman

WASHINGTON — The Supreme Court ruled Thursday that the Trump administration cannot carry out its plan to shut down the Deferred Action for Childhood Arrivals program, which has allowed nearly 800,000 young people, known as Dreamers, to avoid deportation and remain in the U.S.

Chief Justice John Roberts was the swing vote in the 5-4 decision, which deals a big legal defeat to President Donald Trump on the issue of immigration, a major focus of his domestic agenda.

Roberts wrote in the decision that the government failed to give an adequate justification for ending the federal program. The administration could again try to shut it down by offering a more detailed explanation for its action, but the White House might not want to end such a popular program in the heat of a presidential campaign.

Remainder of article and video:

Source: NBC News

message 30: by Bentley, Group Founder, Leader, Chief (new)

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DACA Supreme Court opinion:


Source: Supreme Court Opinions

message 31: by Lorna, Assisting Moderator (T) - SCOTUS - Civil Rights (new)

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Supreme Court Rules Against Trump Administration In DACA Case

By NINA TOTENBURG June 18, 2020

Demonstrators arrive in front of the U.S. Supreme Court during a march in support of Deferred Action for Childhood Arrivals (DACA) on Nov. 10. Jose Luis Magana/AFP via Getty Images

A narrowly divided Supreme Court extended Thursday a life-support line to some 650,000 so-called DREAMers, allowing them to remain safe from deportation for now, while the Trump administration jumps through the administrative hoops that the court said are required before ending the program.

The vote was 5-to-4, with Chief Justice John Roberts casting the decisive fifth vote that sought to bridge the liberal and conservative wings of the court.

Roberts and the court's four liberal justices said the Department of Homeland Security's decision to rescind DACA was arbitrary and capricious under the Administrative Procedure Act.

In his opinion, Roberts wrote: "The appropriate recourse is therefore to remand to DHS so that it may reconsider the problem anew."

Begun in 2012, the DACA program gave temporary protection from deportation to qualified individuals brought to the U.S. illegally as children. Under the program, the DREAMers were allowed to work legally and apply for college loans if they met certain requirements and passed a background check.

President Trump sought to end the program shortly after he took office, maintaining that it was illegal and unconstitutional from the start.

But he was blocked by the lower courts and appealed to the Supreme Court, where Thursday the justices divided over both substance and timing.

The muddled state of play likely prevents the administration from enacting any plans to begin deportations immediately, but there is little doubt that should President Trump be reelected, the second-term president almost certainly would seek to end the program.

Justice Clarence Thomas, in his dissent, wrote: "Today's decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision."

The court's decision presents a particularly delicate political problem for congressional Republicans just four months before the national election in November.

DACA has been an enormously popular program, with public opinion polls showing widespread support for it among Democrats, independents and Republicans.

DACA recipients have gotten advanced degrees; they have started businesses; they have bought houses, had children who are U.S. citizens; and 90% have jobs. Indeed, 29,000 are health care professionals, working on the front lines of the COVID-19 response.

So popular has the DACA program been that the Senate Republican leadership not once, but twice, worked closely with Democrats to work out a deal to protect the Dreamers, only to have Trump renege at the last moment.

What Trump will do before the November election is anyone's guess. The heart of his political base is opposed to immigration in just about every form. But this is no ordinary time.

Amid pandemic and racial crisis, the court's ruling is likely to focus on yet another issue where the president is at odds with public sentiment, while at the same time putting Republican officeholders between the rock of their president's views, and the hard place of their own reelection bids.

Link to article:
Link to DACA Decision:


Just Like Us The True Story of Four Mexican Girls Coming of Age in America by Helen Thorpe by Helen Thorpe Helen Thorpe

Source: NPR News

message 32: by Lorna, Assisting Moderator (T) - SCOTUS - Civil Rights (new)

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Daniel Lewis Lee executed after Supreme Court clears the way for first federal execution in 17 years


In this Oct. 31 1997, photo, Daniel Lewis Lee waits for his arraignment hearing for murder in the Pope County Detention Center in Russellville, Ark.

(CNN)Daniel Lewis Lee, a convicted killer, was executed Tuesday morning in the first federal execution in 17 years after the Supreme Court issued an overnight ruling that it could proceed.

Lee was pronounced dead by the coroner at 8:07 a.m. ET in Terrre Haute, Indiana. His last words were "I didn't do it. I've made a lot of mistakes in my life but I'm not a murderer. You're killing an innocent man," according to a pool report.

The Supreme Court cleared the way for the resumption of the federal death penalty in an unsigned order released after 2 a.m. ET Tuesday.

The court wiped away a lower court order temporarily blocking the execution of Lee in a 5-4 vote.

Lee, a one-time white supremacist who killed a family of three, was scheduled to be executed Monday. A federal judge blocked the planned execution of Lee, and three others, citing ongoing challenges to the federal government's lethal injection protocol.
The US Court of Appeals for the District of Columbia Circuit late Monday refused the Justice Department's request to stay the injunction. The Justice Department had appealed the ruling to the Supreme Court.

CNN has reached out to the Justice Department for comment on the court's ruling.

The Supreme Court said that the death row inmates, including Lee, bringing the case "have not established that they are likely to succeed" in their challenge in part because the one drug protocol proposed by the government -- single dose pentobarbital -- has become a 'mainstay' of state executions."

Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, reiterated in one dissent something he has said before: he thinks it's time for the court to revisit the constitutionality of the death penalty.

"The resumption of federal executions promises to provide examples that illustrate the difficulties of administering the death penalty consistent with the Constitution," he said.

Justice Sonia Sotomayor, joined by Justice Elena Kagan and Ginsburg, wrote separately to criticize the court's "accelerated decision making "

"The court forever deprives respondents of their ability to press a constitutional challenge to their lethal injections," she said.

Three other appeals seeking to delay the execution are also pending at the Supreme Court. One concerns the family of Lee's victims who are concerned about traveling and going to a federal prison during the coronavirus pandemic. A second regards evidence presented by prosecutors during his sentencing hearing.

In 2019, Attorney General William Barr moved to reinstate the federal death penalty after a nearly two decade lapse.

Barr directed the Bureau of Prisons to move forward with executions of some "death-row inmates convicted of murdering, and in some cases torturing and raping, the most vulnerable in our society — children and the elderly." The scheduled executions reignited legal challenges to the specific protocol used in executions and reinvigorated a debate concerning the constitutionality of lethal injection.

Earlene Peterson -- whose daughter, granddaughter and son-in-law were tortured, killed and dumped in a lake by Lee and an accomplice -- has opposed Lee's execution, telling CNN last year that she did not want it done in her name.


Just Mercy A Story of Justice and Redemption by Bryan Stevenson by Bryan Stevenson Bryan Stevenson

Source: CNN

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