Justice Elena Kagan

Justice Elena Kagan joined the U.S. Supreme Court on August 7, 2010, replacing Justice John Paul Stevens. Kagan was born in New York City on April 28, 1960 to descendants of Russian immigrants. After graduating from the prestigious Hunter College High School, where she served as president of the student government, Kagan attended Princeton University. She graduated summa cum laude from Princeton in 1981, majoring in history. Due to receiving a graduating scholarship from Princeton, Kagan continued her studies at the University of Oxford in the United Kingdom. She received a degree in politics from Oxford in 1983. Kagan then attended Harvard Law School, where she served as a supervisory editor of the Harvard Law Review and ultimately graduated magna cum laude in 1986.

Like many of her colleagues on the Supreme Court, Kagan started her legal career with clerkships in federal courts. First, she clerked on the U.S. Court of Appeals for the District of Columbia Circuit, and then she clerked for Justice Thurgood Marshall on the Supreme Court.  Kagan briefly practiced law at a private firm before joining the faculty at the University of Chicago Law School in 1991. She received tenure in 1995. However, Kagan worked in various roles for the administration of President Bill Clinton over the next few years, including as Associate White House Counsel and Deputy Assistant to the President for Domestic Policy. Although Clinton nominated her to the D.C. Circuit in 1999, the Senate Judiciary Committee declined to schedule a hearing on her nomination, so it eventually lapsed.

After her work for the Clinton administration, Kagan became a professor at her alma mater, Harvard Law School. She became Dean of the Law School in 2003, and she received consideration for the presidency of Harvard University in 2007. Democrat President Barack Obama nominated Kagan as U.S. Solicitor General in 2009, although she never had argued a case in any court. She would serve in that role for barely a year, during which she argued six cases before the Supreme Court.

On May 10, 2010, Obama nominated Kagan to the Supreme Court. Her confirmation hearings began in late June, and the Senate Judiciary Committee voted 13-6 in her favor on July 20. The Senate confirmed Kagan by a 63-37 vote on August 5. She took the constitutional and judicial oaths of office two days later, becoming the first Supreme Court Justice who had never previously served as a judge since the appointments of Justices William Rehnquist and Lewis Powell in the 1970s.

Kagan is considered a liberal Justice on most key issues. For example, she has voted in favor of the Affordable Care Act (Obamacare), same-sex marriage, gun control, and abortion, and she has sought to protect voting rights. Kagan has written some of the most readable opinions by the current Justices. She has emphasized the importance of writing in words that non-lawyers can understand. Humor is rare from the highest bench in the nation, but Kagan’s opinion in Kimble v. Marvel Entertainment, LLC enlivened a patent ruling with Spider-Man references.

Selected Opinions by Justice Kagan:

Moody v. NetChoice, LLC (2024)

Topic: Free Speech

The First Amendment offers protection when an entity engaging in expressive activity, including compiling and curating others’ speech, is directed to accommodate messages it would prefer to exclude. Also, a state may not interfere with private actors’ speech to advance its own vision of ideological balance.

Smith v. Arizona (2024)

Topic: Criminal Trials & Prosecutions

When an expert in a criminal trial conveys an absent analyst's statements in support of their opinion, and the statements provide that support only if true, the statements come into evidence for their truth. If those statements are also testimonial, the Confrontation Clause will bar their admission.

Warner Chappell Music, Inc. v. Nealy (2024)

Topic: Copyrights

A copyright owner possessing a timely claim for infringement is entitled to damages, no matter when the infringement occurred.

Muldrow v. City of St. Louis, Missouri (2024)

Topic: Labor & Employment

Although an employee must show some harm from a forced job transfer to prevail in a Title VII claim, they do not need to show that the injury satisfies a significance test.

Counterman v. Colorado (2023)

Topic: Free Speech

Although true threats of violence are outside the bounds of First Amendment protection, the First Amendment still requires proof that the defendant had some subjective understanding of the threatening nature of their statements. However, the state only needs to prove recklessness, which means that the defendant consciously disregarded a substantial risk that their communications would be viewed as threatening violence.

Jack Daniel's Properties, Inc v. VIP Products LLC (2023)

Topic: Trademarks

When the accused infringer has used a trademark to designate the source of its own goods, that kind of use falls within the heartland of trademark law and does not receive special First Amendment protection.

Minerva Surgical, Inc. v. Hologic, Inc. (2021)

Topic: Patents

The doctrine of assignor estoppel, which limits an inventor's ability to assign a patent to someone else for value and later contend in litigation that the patent is invalid, applies only when the assignor's claim of invalidity contradicts explicit or implicit representations that they made in assigning the patent.

Ford Motor Co. v. Montana Eighth Judicial District Court (2021)

Topic: Lawsuits & Legal Procedures

When a company serves a market for a product in a state, and that product causes an injury in the state to one of its residents, the state's courts may entertain the resulting lawsuit.

Chiafalo v. Washington (2020)

Topic: Voting & Elections

A state may enforce an elector's pledge to support their party's nominee (and the state voters' choice) for President.

Kahler v. Kansas (2020)

Topic: Due Process

Due process does not require a state to adopt an insanity test that turns on a defendant's ability to recognize that their crime was morally wrong.

Kisor v. Wilkie (2019)

Topic: Government Agencies

A court should not afford Seminole Rock/Auer deference unless the regulation is genuinely ambiguous after exhausting all the traditional tools of construction. If genuine ambiguity remains, the agency's reading must still fall within the bounds of reasonable interpretation. A court also must make an independent inquiry into whether the character and context of the agency interpretation entitle it to controlling weight.

Iancu v. Brunetti (2019)

Topic: Trademarks

The Lanham Act's prohibition on registration of immoral or scandalous trademarks violates the First Amendment.

Madison v. Alabama (2019)

Topic: Death Penalty & Criminal Sentencing

The Eighth Amendment may permit executing a prisoner even if he cannot remember committing his crime. On the other hand, the Eighth Amendment may prohibit executing a prisoner even though he suffers from dementia or another disorder, rather than psychotic delusions.

Cooper v. Harris (2017)

Topic: Voting & Elections

A state may not use race as the predominant factor in drawing district lines unless it has a compelling reason.

Luna Torres v. Lynch (2016)

Topic: Immigration & National Security

A state offense is an aggravated felony for immigration purposes when it has every element of a listed federal crime, except an element requiring a connection to interstate or foreign commerce.

Scialabba v. de Osorio (2014)

Topic: Government Agencies

When two halves of a statute do not correspond to each other, this gives rise to an ambiguity that calls for Chevron deference.

Bowman v. Monsanto Co. (2013)

Topic: Patents

Patent exhaustion does not permit a farmer to reproduce patented seeds through planting and harvesting without the patent holder's permission.

Miller v. Alabama (2012)

Topic: Death Penalty & Criminal Sentencing

The Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile homicide offenders.