Associate Justice Elena Kagan, after decade on bench, emerges as Supreme Court 'bridge-builder'
WASHINGTON – The day before Brett Kavanaugh was confirmed to take the seat next to hers at the Supreme Court, Associate Justice Elena Kagan publicly fretted over the institution's future.
Her fear had less to do with the bitter partisanship that marked Kavanaugh's nomination in 2018 than it did the retirement of his predecessor, Associate Justice Anthony Kennedy, whose penchant for being the swing vote had extended the court's decades-long reputation for being, in Kagan's words, "impartial and neutral and fair."
But in its two terms since then, the court has maintained most of its luster as the least political branch of the federal government. It handed President Donald Trump and the conservative legal movement several major defeats and limited the impact of their victories.
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Chief Justice John Roberts gets most of the credit, or blame. But the strategic influence of Kagan, President Barack Obama's second Supreme Court nominee a decade ago, can be seen in many of the unexpected rulings and in the court's ability, in her words, to remain "somehow above the fray."
"It’s an incredibly important thing for the court to guard this reputation of being fair, of being impartial, of being neutral and of not being simply an extension of the terribly polarized political process and environment that we live in,” she said in October 2018, seated next to fellow Associate Justice Sonia Sotomayor at Princeton, their undergraduate alma mater.
That reputation seemed fragile when Kagan was confirmed Aug. 5, 2010, to replace Associate Justice John Paul Stevens, a Republican president's nominee who went on to lead the court's liberal wing. Kagan's Senate confirmation left the court with a stark partisan divide: five conservatives nominated by Republican presidents and four liberals nominated by Democrats.
Perhaps for that reason, the court's more centrist justices – Roberts and Kennedy, until his retirement in 2018, from the right, Kagan and Associate Justice Stephen Breyer from the left – often have found common ground in the middle. For Kagan, that's no accident.
“She emerged immediately as a bridge-builder," says Abbe Gluck, a professor at Yale Law School and former law clerk for Associate Justice Ruth Bader Ginsburg. "She has gone out of her way to try to find areas of common ground with all the more conservative members of the court.”
Kagan's votes are less predictable than her better-known liberal colleagues, Sotomayor and Ginsburg. She writes separately from the court's majority opinion less often and less stridently. She picks her fights.
When she does, her colleagues usually take notice. Four times in the past two terms, Kagan wrote the principal dissent for the four liberals in cases on voting rights, workers' rights, consumer rights and property rights. Each time, it appears Ginsburg assigned her that role to take on majority opinions written by Roberts.
“Sometimes I come back from conference, and I just want to ram my fist through the wall,” Kagan recounted during an appearance at George Mason University in 2019.
But in the Princeton appearance, she said, “If you hold grudges, or if you have a bad relationship with one of your colleagues, then in the next case and in the next case and in the next case, you have not much of a chance of persuading that colleague to come along with what you think is the right thing to do."
'Diplomatic skills'
Unlike the eight former federal appeals court judges she serves with, Kagan had never been a judge before arriving on the Supreme Court. She had a rich and varied career marked by twists and turns that gave her vast experience in both government and academia. "Serendipity," she calls it.
Had Republicans not blocked her nomination by President Bill Clinton to the U.S. Court of Appeals for the District of Columbia Circuit, she would have missed being named dean of Harvard Law School. If she had not been denied the school's presidency, she probably would have been unavailable when Obama needed a solicitor general to represent the government at the Supreme Court.
At Harvard, Kagan brought peace to a warring faculty and won over the law school community with what Miguel Estrada, a conservative appellate litigator with whom Kagan graduated Harvard Law in 1986, calls the "diplomatic skills" she brought to the court.
As solicitor general, her first-ever oral argument was what she called the "incredibly nerve-racking experience" of arguing Citizens United v. Federal Election Commission, in which the court ruled 5-4 that corporations, acting independently, can spend unlimited amounts on elections.
She was beginning her fourth sentence when Associate Justice Antonin Scalia interrupted: "Wait, wait, wait, wait." The two later became good friends, mutual admirers and hunting buddies.
Obama considered Kagan for the Supreme Court seat that went to Sotomayor in 2009, and she was atop the list a year later when Stevens, 40 years her senior, retired at 90. She was confirmed 63-37 after winning over five Republicans, including the current chairman of the Judiciary Committee, Sen. Lindsey Graham, R-S.C., who questioned her about the attempted bombing of a Northwest Airlines flight headed to Detroit on Christmas Day 2009.
"I just asked you where you were at on Christmas," Graham quipped.
"You know, like all Jews, I was probably at a Chinese restaurant," Kagan responded.
Within a few years, Kagan had earned kudos from liberals as well as conservatives for her work ethic, brainpower, oral and written skills, affable personality and adherence to the court's precedents. Some liberals privately wish she was less willing to compromise, but they don't criticize her publicly.
"I haven't had a single regret" about his successor, Stevens told USA TODAY in 2014. "There are a few times where I would have decided a case differently than she has," but "she's a beautiful writer. She's doing a fine job."
At the two tasks observable by the general public – hearing oral arguments and writing opinions – Kagan excels. During arguments, she probes for weak spots in advocates' positions, seeking to influence her colleagues along the way. Her only equal, most court watchers agree, is conservative Associate Justice Samuel Alito.
“She asks really great questions, and unlike many leaders, she does not really want to hear herself talk," says Martha Minow, who succeeded Kagan as dean at Harvard Law School. "She listens.”
Kagan's opinions, whether in the majority or dissenting, are crafted to be understood by nonlawyers. She gathers input from all four of her law clerks but treats their draft opinions as "a kind of a launching pad," she said in 2014.
She writes the final version herself, she said, because "it's important for me to have my own voice." That includes sprinkling in references to popular culture, from Spider-Man to the TV show "Veep," as well as quips. To an Alaskan moose hunter who twice won cases at the high court, Kagan sent him off with hope for "good hunting."
“She has succeeded Justice Scalia as the court’s finest writer,” says Walter Dellinger, an appellate lawyer, professor and former acting solicitor general.
The difference between Kagan and Scalia, Estrada says, is that "she occasionally has a wink, but not a broad smirk."
Writing 'for the ages'
Outnumbered 5-4 by conservatives throughout her tenure on the court, Kagan's liberal minority has suffered major defeats. A provision of the Voting Rights Act was invalidated. Labor unions lost the right to collect fees from nonmembers. A private company was allowed to deny its workers coverage for contraceptives, and a town board was allowed to open its meetings with solely Christian prayers.
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Kagan doesn't write dissenting opinions often – this past term, she penned just one – but in 2019, she couldn't hold back when the court ruled 5-4 that federal judges are powerless to stop partisan state legislatures from drawing egregious legislative district lines.
"The practices challenged in these cases imperil our system of government," Kagan wrote. “Part of the court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent.”
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"There is a vast difference between her majority opinions and her dissents, and they show off two very different skills," says Irv Gornstein, executive director of the Supreme Court Institute at Georgetown University Law Center. "Her majority opinions in closely divided cases usually read like they are written to hold five, while her dissents in closely divided cases read like they are written for the ages."
Despite conservative control, Kagan and her fellow liberals have won their share of victories. The Affordable Care Act was preserved, thanks to the willingness of Kagan and Breyer to weaken its expansion of Medicaid. Same-sex marriage was legalized nationwide. College affirmative action policies were upheld. Abortion restrictions twice were struck down.
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In the most recent term, the court extended federal protections from job discrimination to gay and transgender workers and blocked the Trump administration from ending the Deferred Action for Childhood Arrivals (DACA) program, which protects 650,000 undocumented immigrants from deportation.
Some of those victories are tenuous, but they show that the court during Kagan's tenure often has favored compromise over conservative absolutism.
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“Kagan is playing a nine-justice game. She understands that judging is a collective activity," Dellinger says. "So, more than any other justice, she is less concerned with what her perfect position would be and more concerned about what would be a right and workable answer that would attract a majority of the court.”
One major area of success is administrative law, which sets the rules for government agencies. Last year, Kagan wrote the 5-4 decision that preserved federal agencies' power to interpret ambiguous regulations. The court set out limits on those powers.
Deference "is sometimes appropriate and sometimes not," Kagan said, applying "only when a regulation is genuinely ambiguous" and the agency's rule is reasonable. Last month, she said such ambiguity allowed the Trump administration to exclude employers with religious or moral objections from helping to provide insurance coverage for contraceptives, a position at odds with liberal orthodoxy.
That 7-2 ruling drew harsh criticism from abortion rights groups, the liberal Center for American Progress, the American Civil Liberties Union and Joe Biden, the presumptive Democratic nominee for president. Similar critiques followed the court's 7-2 ruling that religious schools are exempt from most employment discrimination claims. Kagan, along with Breyer, agreed with the five conservatives in both cases.
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“This is a shameful decision from the Supreme Court," the ACLU's Brigitte Amiri said of the ruling on birth control coverage. "Religious liberty is a fundamental right, but it does not grant a license to discriminate."
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Kagan's zeal for following the court's precedents, old and new, fits that same pattern. The conservative majority has overruled several of them in recent years, a practice she regularly assails. For most liberals, the crown jewel of precedents is the court's ruling in Roe v. Wade upholding abortion rights in 1973.
When the court overruled a 40-year-old precedent in the labor organizing decision in 2018, Kagan wrote, "Judicial disruption does not get any greater than what the court does today." When it wiped out another precedent last year in a case about private property rights, she noted it had roots in the 19th century.
"Today's opinion smashes a hundred-plus years of legal rulings to smithereens," she said.
“I see Kagan's role as a more institutional one and as a more pragmatic one," says Gillian Metzger, a scholar of administrative and constitutional law at Columbia Law School and another former Ginsburg law clerk.
Chief justice in waiting?
Ten years in, Kagan remains relatively unknown to the general public. Nearly half of those polled by Marquette University Law School last year said they never heard of her.
That's fine by Kagan, those who know her say. She prefers the inside game at the court, with occasional forays to teach at Harvard or speak at other law schools. Let others, such as Ginsburg and Sotomayor, gain the spotlight.
Ginsburg, however, is 87 and battling cancer. Her time on the court appears to be dwindling. Breyer turns 82 this month, and Sotomayor's adopted role is that of the "people's justice." Eventually, Kagan's role as the court's most influential liberal will be obvious.
Will that be on a court tilted further to the right, in which Trump and Senate Republicans expand its conservative majority? Or might Democrats take over the other two branches and turn the court to the left, a goal that could take years, if not decades, because of the relative youth of the conservative justices?
Either way, friends and court watchers say, Kagan will play the long game.
“To my mind, Kagan is the natural inheritor as chief justice whenever Roberts decides to retire," Metzger says. "Her ability to unite, combined with her tremendous intellectual firepower, just make her a real powerful force.”
This article originally appeared on USA TODAY: Elena Kagan: After 10 years, Supreme Court justice wields influence
