User:Knope7/sandbox/Elena Kagan

Notable opinions

Luis v. United States https://thinkprogress.org/justice-kagan-just-wrote-the-most-interesting-scotus-opinion-of-the-year-863b2d3552e8/

Solicitor General

Argued Citizen's United http://www.washingtonpost.com/wp-dyn/content/article/2010/05/12/AR2010051205049_2.html?sid=ST2010051300025

Arizona Christian School v. Winn, Arizona Free Enterprise v. Bennett, first term recusals https://www.theatlantic.com/national/archive/2011/06/the-9-best-supreme-court-dissents-of-the-term/241033/http://www.abajournal.com/news/article/kagan_claims_chutzpah_in_latest_dissent_her_opinions_are_conversational_wry/

Scalia hunting: https://www.azcentral.com/story/news/local/arizona/2016/08/31/supreme-court-justice-elena-kagan-antonin-scalia/89676192/

less specific Scalia hunting: http://www.chicagotribune.com/business/ct-confidential-elena-kagan-0204-biz-20150203-column.html

Greece v. Galloway http://www.chicagotribune.com/news/opinion/zorn/ct-kagan-zorn-0506-story.html

Sessions, also RBG assigning https://slate.com/news-and-politics/2018/04/ruth-bader-ginsburg-just-assigned-a-majority-opinion-for-the-first-time-ever.html

Janus dissent: https://www.vox.com/2018/6/27/17510338/supreme-court-kagan-dissent-janus, https://talkingpointsmemo.com/dc/elena-kagan-janus-dissent

https://news.northwestern.edu/stories/2015/02/kagan-talks-about-life-on-the-supreme-court

Smoke cigars and play poker https://www.lextalk.com/b/lextalk_blog/archive/2014/07/21/9-surprises-about-scotus-justices-you-might-not-know.aspx "Anthony M. Kennedy and Elena Kagan can be very charming when they go out socially, which is rare." Poker, athletic https://news.harvard.edu/gazette/story/2010/08/senate-approves-kagan-for-high-court/ Toobin's friendship https://www.newyorker.com/news/news-desk/elena-kagans-nomination#ixzz0nXixepao

Ginsburg: https://www.forbes.com/sites/sashagalbraith/2013/02/05/justice-sonia-sotomayors-advice-for-women-today-know-when-to-fight/#794a74e24c90

solicitor general bio: https://www.justice.gov/osg/bio/elena-kagan

Kagan talks about writing style: https://news.harvard.edu/gazette/story/2014/09/court-sense/

Other activities

Kagan, like other justices, makes public appearances when not hearing cases at the Court. In her first four years on the court, Kagan made at least 20 public appearances. Kagan tends to choose speaking engagements that allow her to speak to students.

Personal life

Kagan's Harvard colleagues and friends characterized Kagan as a good conversationalist, warm, and having a good sense of humor. Prior to to joining the Supreme Court was known to play poker and smoke cigars. Early on in her tenure as a justice, Kagan began socializing with several of her new Court colleagues. She attended the Opera with Ginsburg, dinner with Sotomayor, attending legal events with Kennedy and Thomas, and hunting with Scalia. The hunting trips with Scalia stemmed from a promise Kagan made to Senator during a meeting prior to her confirmation to the Supreme Court. Senator James Risch of Idaho expressed concern that New York City native Kagan didn't understand the importance of hunting to his constituents. Kagan offered to go hunting with the Senator before promising instead to go hunting with Scalia if confirmed. According to Kagan, Scalia later laughed when she told him of the promise and he took her to his hunting club for the first of several hunting trips. Kagan is known to spend time with longtime friends from law school and her stint working in the Clinton Administration rather than DC social events she is invited to as a justice.

stat pack list: http://www.scotusblog.com/reference/stat-pack/

Scotusblog 2017 highs and lows

Added

Kagan's first dissent came in the First Amendment case Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125 (2011). Writing for the liberal wing, Kagan took issue with the majority's creation of an exception to the Establishment Clause of the First Amendment. The majority held that Arizona tax payers could not challenge tax credits for those who donate to groups that provide scholarships to religious schools, drawing a distinction between the way the court treated tax credits and grants. Kagan deemed this distinction "arbitrary" as tax credits and grants could be used to achieve the same objectives. She viewed the majority's decision as creating a loophole for governments to fund religion.

In another Establishment Clause case, Town of Greece v. Galloway, 572 U.S. ___ (2014), Kagan wrote a dissent arguing that a town's prayer at a counsel meeting failed to treat all Americans the same no matter what religion they practice. Greece involved a town in New York inviting chaplains, for several years all Christian, to give a prayer before town counsel meetings. Unlike Marsh v. Chambers, 463 U.S. 783 (1983), where the Supreme Court had upheld a state legislature opening with a prayer, Kagan noted the board in Greece was forum for ordinary citizens. For Kagan, the use of prayer showed a preference for a particular religion and violated the First Amendment Rights of Americans interacting with their government.

Sixth Amendment

Kagan dissented in Luis v. United States, 578 U.S. ___ (2016), where the five justice majority held that the freezing of untainted assets, those not traced back to criminal activity, pre-trial was a violation of a defendant's sixth amendment right to counsel where those assets were needed to retain counsel of the defendant's choosing. The defendant, Sila Luis, had been charged with medicare fraud, in which prosecutors alleged Luis illegally charged $45 million for unneeded services. The prosecutors asked a judge to freeze $2 million of Luis' assets, which Luis said she needed to pay legal bills, after she had already spent most of the $45 million from the alleged scheme. A prior Supreme Court case, United States v. Monsanto, 491 U.S. 600 (1989), held that a court could freeze a defendant's assets, including funds obtained through the alleged sale of drugs, pretrial even where those assets were being used to hire an attorney. The majority sought to distinguish their holding in Luis from Monsanto based upon the nature of the funds being frozen pretrial; Luis' funds were not directly linked to her crime whereas Mosanto's funds were. Kennedy dissented in Luis because he did not think criminal defendants should be treated differently based on how quickly they spent their illegal proceeds; he did not think it was right to spare the criminal defendant who spends their ill gotten gains quickly while punishing another criminal defendant who spends legal money first. Kagan agreed with Kennedy that the court's decision created inequity and drew an arbitrary distinction, however, Kagan went further to opine that Monsanto may have been wrongfully decided. Kagan suggested she would be willing to overturn such precedent in the future, but declined to do so in the case at bar because Luis had not sought that relief. Thus, Kagan's vote rested on procedural grounds while she expressed skepticism that the government should be able to freeze the assets on a criminal defendant not yet convicted, and thus still benefiting from the presumption of innocence, with a showing of probable cause that the property will ultimately be subject to forfeiture.

Cooper v. Harris

Kagan wrote for the majority in Cooper v. Harris, 581 U.S. ___ (2017), striking down two of North Carolina's congressional districts. The Court held the districts were unconstitutional because they relied on race and did not pass the strict scrutiny standard of review. In a footnote, Kagan sets forth a new principle, that is congressional districts where race is the predominate factor maybe found to be an unlawful racial gerrymander, even if they have another ultimate goal, such as sorting voters by political affiliation. Applying this principle to the facts of the case, the Court unanimously struck down North Carolina's District 1 where state lawmakers had increased the state's black-voting age population by 4.1% even though the black population had already been able to elect preferred candidates before the district lines were redrawn. The strengthening of the number of black voters within District 1 resulted in weakening the strength of black voters elsewhere in the state. The Court also struck down District 12, although by a vote of 5-3, for similar shifts in the racial composition of the district. The dissent did not believe that those challenging the validity of the districts had proven that race, not politics, caused the change in District 12. Kagan quoted court precedent that race must only be a predominate consideration, and challengers did not need to prove politics was not a motivating factor.

Ideologically, Kagan is part of the Supreme Court's liberal wing: In 2018, Slate observed Kagan had crossed ideological lines on multiple cases during the proceeding term, and considered Kagan to be part of a centrist block along with Justice Steven Breyer, Anthony Kennedy, and Chief Justice John Roberts. Still, FiveThirtyEight observed that Kagan voted with her more liberal peers, Justices Ruth Bader Ginsburg and Sotomayor, over 90% of the time.

Writing Separately

In her first term on the Court, Kagan did not write any separate opinions, and wrote the fewest opinions of any Justice on the Court. She only wrote majority opinions or dissents that more senior justices assigned to her, and in which she and a group of justices agreed upon a rationale for deciding the case. This tendency to write for a group rather than herself made it difficult to determine her own unique nuanced views or where she might lean in future cases. She wrote the fewest opinions for the terms from 2011 through 2014, tying with Kennedy for the 2011 and 2013 terms.