This article appears in the Spring 2015 issue of The American Prospect magazine. Subscribe here.
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On the last day of Elena Kagan’s first term as a justice, in 2011, the Supreme Court announced an important decision about government limits on money in politics. The Court struck down the Arizona Citizens Clean Elections Act, which provided public funding for candidates who agreed to limit their overall spending in state campaigns. When a privately funded candidate spent money on advertising, for example, the state gave publicly funded candidates roughly the same amount up to specific limits.
The Court majority held that the matching funds that these candidates received “penalized” opposing candidates as well as groups making independent expenditures, and, as a result, “burdened their ability to fully exercise their First Amendment rights.” No interest of the state, not even ending an epidemic of corruption, the Court ruled, was vital enough to justify the burdens. The vote was 5–4, reflecting the Court’s general polarization along party lines for the first time in American history: The five conservatives in the majority were appointed by Republican presidents, the four moderate liberals in dissent, by Democrats.
Kagan wrote the dissenting opinion, a dissent that helps define her as a justice. The Court’s decision was the fifth in five years striking down a restriction on campaign finance, but the first since the momentous ruling in Citizens United a year and a half before, in which the Court held that the government could not limit independent spending by corporations in elections. Justice Anthony Kennedy wrote the majority opinion that released billions of dollars into American politics.
In the Arizona clean elections case, Arizona Free Enterprise Club v. Bennett, Chief Justice John G. Roberts Jr. assigned himself the majority opinion. It had the single-mindedness of a first-rate legal brief. Suppose a “privately funded candidate spent $1,000 of his own money to conduct a direct mailing,” Roberts hypothesized. “Each of his publicly funded opponents would receive $940 ($1,000 less the 6 percent offset).” The prospect of that matching money burdened the privately funded candidate, whether or not he did the mailing and his publicly funded opponents actually received the match.
By Roberts’s Alice-in-Wonderland logic, if a candidate decided not to do a mailing so as to keep opponents from getting the matching funds, it was the fault of those undisbursed funds that he was deprived of the speech he would have expressed through the mailing. Or if he went ahead with the mailing and opponents got the funds, the funds reduced the impact of his mailing and therefore of his speech. In other words, a law intended to increase speech would paradoxically retard it.
With Sonia Sotomayor, Ruth Bader Ginsburg, and Kagan, the Court has three female justices for the first time.
It made sense for Justice Ruth Bader Ginsburg, as the senior dissenting justice, to assign the dissenting opinion to Kagan. When she was a law professor, Kagan had a particular interest in free speech under the First Amendment. As solicitor general for the Obama administration, her first argument before the Supreme Court (her first argument before any appeals court) was in Citizens United in 2009, defending the part of the campaign-finance statute restricting corporate spending in elections that the Court soon struck down. But none of that predicted how fresh, lucid, and powerfully cogent her dissent would be in the Arizona campaign-finance case.
“Imagine two States, each plagued by a corrupt political system,” she began, addressing the reader directly and adding to the sense of immediacy by using the present tense. “In both States, candidates for public office accept large campaign contributions in exchange for the promise that, after assuming office, they will rank the donors’ interests ahead of all others. As a result of these bargains, politicians ignore the public interest, sound public policy languishes, and the citizens lose confidence in their government.”
One state adopts campaign finance measures approved by the Supreme Court: caps on contributions to campaigns; disclosure of big donations; and a limited public funding program. The measures don’t work and corruption continues to reign. The other state concludes that “the greatest hope of eliminating corruption lies in creating an effective public financing program, which will break candidates’ dependence on large donors and bundlers,” and that candidates must “receive sufficient funding to run competitive races.” The program, using matching funds, “accomplishes its mission of restoring integrity to the political system.”
Arizona was the second state. It adopted public matching after AzScam, a public corruption scandal of gargantuan scale in which “nearly 10 percent of the State’s legislators were caught accepting campaign contributions or bribes in exchange for supporting a piece of legislation.” Kagan explained, “If an officeholder owes his election to wealthy contributors, he may act for their benefit alone, rather than on behalf of all the people.” With its program, Arizona met “the challenge that bedevils all public financing schemes: Fixing the amount of the subsidy.” It was “the Goldilocks solution, which produces the ‘just right’ grant to ensure that a participant in the system has the funds needed to run a competitive race.” Rather than restricting speech, the program did the opposite: “What the law does—all the law does—is fund more speech.”
But the candidates for office in Arizona who had challenged the law were demanding “essentially a right to quash others’ speech through the prohibition of a (universally available) subsidy program. Petitioners are able to convey their ideas without public financing—and they would prefer the field to themselves, so that they can speak free from response. To attain that goal, they ask this Court to prevent Arizona from funding electoral speech—even though that assistance is offered to every state candidate, on the same (entirely unobjectionable) basis. And this Court gladly obliges. If an ordinary citizen, without the hindrance of a law degree, thought this result an upending of First Amendment values, he would be correct.”
Kagan’s dissent carried on with the same clarity, frankness, and solicitude for us, the readers. Her closing section went like this:
“This case arose because Arizonans wanted their government to work on behalf of all the State’s people. On the heels of a political scandal involving the near-routine purchase of legislators’ votes, Arizonans passed a law designed to sever political candidates’ dependence on large contributors. They wished, as many of their fellow Americans wish, to stop corrupt dealing—to ensure that their representatives serve the public, and not just the wealthy donors who helped put them in office. The legislation that Arizona’s voters enacted was the product of deep thought and care. It put into effect a public financing system that attracted large numbers of candidates at a sustainable cost to the State’s taxpayers. The system discriminated against no ideas and prevented no speech. Indeed, by increasing electoral competition and enabling a wide range of candidates to express their views, the system ‘further[ed] … First Amendment values.’” (The quote is from another Court opinion.) “Less corruption, more speech. Robust campaigns leading to the election of representatives not beholden to the few, but accountable to the many.
“The people of Arizona might have expected a decent respect for those objectives. Today, they do not get it.”
KAGAN IS THE ONLY JUSTICE on the current Court with no prior experience as a judge. That turns out to be a notable plus. She is increasingly recognized as an outstanding writer of judicial opinions after almost five years on the Court. In a point-by-point comparison of conceptual insight, persuasiveness, eloquence, and argumentative verve, Kagan surpasses the other current justices in the quality and logic of her prose. It is premature to compare her with Justices Oliver Wendell Holmes Jr., Louis D. Brandeis, Robert H. Jackson, or other Olympian writers of the Court since it first sat in 1790, but, in one way, she already stands out even in that company.
Alone among the current justices and different from any before, Kagan in her major opinions addresses the American public as her readers, as if being a justice obliges her to say simply and directly why what the Court has decided matters for us. That is so whether she is writing for the majority, as she has in about two-thirds of her opinions, or in dissent, in about one-fourth of them, and is often expressed in small turns with large implications.
Last May, for instance, in Town of Greece v. Galloway, a major ruling about the role of religion in government, there were five different opinions, including a Kagan dissent. The Constitution was referred to as “the Constitution” in each of the other opinions, as it normally is. In Kagan’s, on the other hand, it was “our Constitution,” as in “Our Constitution promises …” and “our Constitution makes a commitment ….”
In a public conversation at Princeton University last November, she was asked what her toughest decision had been so far as a justice. She answered in the vernacular familiar from her opinions: “It was a case about whether kids could buy violent video games without their parents’ permission.” California had passed a statute saying that they couldn’t. The Supreme Court struck down the law 7–2, with Kagan in a majority of five holding that the First Amendment fully protects depictions of violence, from Dante’s Inferno to Grimm’s Fairy Tales and now to violent video games like “Grand Theft Auto: Vice City.”
Kagan's 1981 Princeton yearbook portrait
Kagan said that she is “not usually an agonizer,” adding, “I don’t do a lot of Hamlet sort of stuff,” but in this case she had. To the justice, if a parent doesn’t want her kids to buy violent video games, she deserves the backing of the law. But the California law was at odds with well-established law under the First Amendment, and she could not figure out how to square that law with the state restriction. She finished her answer by trailing off, “That’s the one case I kind of think, I just don’t know, I just don’t know if that’s right.” The answer identified her with California parents and, by proxy, with anyone truly affected by a ruling of the Court against them.
Along with Roberts, Kagan is the only justice who can be entertaining without seeming to work at it. She is usually upbeat and down-to-earth, with a high-wattage smile and a wisecracker’s sense of humor. She keeps that in check most of the time, with an affable manner. At Princeton, surprisingly, she was asked if she had been hazed when she first arrived on the Court. Even more surprising, Kagan said yes, answering in a way that was both tongue-in-cheek and informative.
The newest member of the Court, she reminded the audience, is called the “Junior Justice.” At meetings of the Court to decide cases, Kagan explained, only the justices attend. “So somebody has to do two things. The first is that somebody has to take notes, so you can then go out and tell people what just happened, and I take notes. That’s the Junior Justice’s job. The other thing is that you have to answer the door when there’s a knock on the door. Literally, if there is a knock on the door and I don’t hear it, there will not be a single other person who will move. They just all stare at me until I figure out, ‘Oh, I guess somebody knocked on the door.’ These two jobs, the note-taking and the door-opening—you can see how they can get in the way of each other, right? You might say, what do people knock on the door for? Why does anybody knock on the door? Knock, knock—I’m not going to name names—‘Justice X forgot his glasses.’ Knock, knock, ‘Justice Y forgot her coffee.’ There I am, hopping up and down. I think that’s a form of hazing, don’t you?”
Appearances like Kagan’s Princeton visit, which all the justices make, are attempts to humanize a Court that is increasingly distrusted. In the past 15 years, the Court’s approval ratings have trended downward significantly (from 62 percent to 44 percent) and its disapproval ratings have trended upward even more (25 percent to 48 percent). In cases where law and politics seem to fuse, the kind decided by five Republicans over four Democrats, politics often appears to shape the law explicitly—making the Court seem more like the elected branches of government in a period when their standing is starkly low.
The Court has had two big opportunities in recent years to earn public trust by making itself more accessible and more accountable, and has pointedly declined both. The first is to allow cameras in the courtroom, as other supreme courts have done throughout the United States and in other countries. The second is to require the justices to follow the code of ethics that is binding on other federal judges and to adopt a formal process for handling motions that ask justices to recuse themselves from hearing a particular case. The justices are the only American judges not bound by an ethics code. Each proposal enjoys bipartisan support and has been framed to respect the dignity of the justices and the Court. Its high-handedness in rejecting both has reinforced the perception of its remoteness. That is symbolized by the decision to close the Court’s bronze front doors, which Justice Stephen Breyer, in an unusual dissent from that choice, called “a metaphor for access to the Court itself.”
Against this backdrop, Kagan is engaged in a remarkable democratic experiment. In a voice that is sometimes closer to journalism than to judicial prose, her opinions are locating cases and controversies in the fundamental currents of American history, as well as in the thickets of the legal process. Speaking directly to Americans, Kagan offers inspiration when it is unexpected and sounds off against unfairness. She marks the path to redemption in areas of law that seem battered by politics. In unhurried, unstuffy, and unadorned prose, her opinions are, by turns, serious, combative, cheeky, and elegiac, while addressing the law with warmth and intelligence. Her opinions seem crafted to gain, or regain, trust. They are easing those doors open again.
KAGAN'S FIRST MEMORY OF writing involves her mother. At home in New York City where Kagan was born and grew up, the two would go over her elementary school reports due as homework, line by line. Her mother, Gloria, was short, hyper-energetic, and brainy, as Kagan is. At Hunter Elementary School, where the justice went before going to Hunter High School, Mrs. Kagan taught language arts: grammar, punctuation, and writing. She had a rich, precise vocabulary, a former student of hers said recently, which she did not dumb down for her fifth- and sixth-graders. She taught her students the practice of looking closely, whether at the words and meter of a Keats poem or at the images on a Chinese scroll. She also taught them how to fold a newspaper so it was easy to read on the subway. She was a demanding, often prickly teacher, but she occasionally gave a word of praise that reassured her students how well she knew each one. Some adored her. How she taught her students suggests how she taught the future justice. “She had very high standards,” Kagan told Bryan Garner, the word maven and legal editor. “But I learned a lot from her and can count many years’ worth of students who learned a lot from her.”
Kagan graduates from Harvard Law School in 1986.
The mentor who helped Kagan become a writer was Sean Wilentz, a Princeton professor who won the Bancroft Prize for The Rise of American Democracy. In his second year on the history faculty in 1980, when he was 29 and Kagan 20, he advised her on her senior-year thesis about socialism in New York City. He was from the city (his father owned the Eighth Street Bookshop in Greenwich Village) and was also doing research about New York for his first book, which was about the city and the rise of the American working class.
Kagan said to Garner, “That experience was probably the first time in my life when somebody who himself was a fabulous writer spent so much time, sentence by sentence, telling me what I could do better.” When she was nominated for the Court in 2010, Wilentz talked about her on the Charlie Rose show. Doing history takes “a tenacity of investigation,” he said, and Kagan had it. “She has an ability to enter into other peoples’ arguments,” he went on. “That’s a special kind of brilliance, to understand what your adversaries are talking about, to understand what they are saying. To pick up an object and look at it from all the angles, top to bottom. That is something Elena can do with great detachment. That requires not just smarts. It requires self-confidence—self-confidence in your own position—to do that. She has plenty of that.”
The title of Kagan’s thesis was “To the Final Conflict: Socialism in New York City, 1900–1933,” referring to “The Internationale,” the left-wing anthem with the refrain: “’Tis the final conflict/Let each stand in his place/The International Union/Shall be the human race.” The paper addressed the question of why there wasn’t an influential socialist movement in the United States, given what she described as the “American discontent with the nation’s hardening corporate order” in that period. Three leading historians had found answers in external factors, like the lack of rigid class distinctions in the United States. Kagan brazenly rejected those arguments.
She answered the question by looking closely at New York City and what “caused the strange death of socialism” there. The answer was internal factors and, basically, self-destruction. A “right-left cleavage arose” among socialists over “the very fundamentals of socialism itself,” such as the class composition of a socialist party or the attitude the party should take toward non-radical reforms. The two camps engaged in “constant and acid debate” and doomed the Socialist Party.
Kagan graduated summa cum laude and Phi Beta Kappa from Princeton in 1981. Writing about socialism was the first of a series of life choices indicating that, when defining her own politics, she looked to the left. It is also evidence that she was prodigiously young when she demonstrated her “tenacity of investigation” and what Wilentz called her “historical consciousness”—her understanding of large national choices in the context of American history.
Her accomplishments between Princeton and the Supreme Court went like this: an M. Phil. from Oxford in 1983; a J.D. magna cum laude from Harvard Law School in 1986, where she was second-in-command of the Harvard Law Review (and runner-up for president to Carol S. Steiker, now a Harvard law professor); a clerkship with an old-fashioned liberal, Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit, from 1986 to 1987; a clerkship with the civil rights hero Justice Thurgood Marshall, during the 1987 term of the Supreme Court; two years as a junior lawyer in Washington, D.C., at Williams & Connolly, an elite firm specializing in litigation; four years as an assistant professor of law at the University of Chicago Law School; four years in the Clinton administration, first as associate counsel under Abner Mikva, by then counsel to the president (Clinton nominated her to the D.C. Circuit in 1999, but Republicans refused to let the Senate consider her), and then as deputy assistant to the president for domestic policy; two years as a professor of law at Harvard from 2001 to 2003; appointment as the first female dean of Harvard Law School; appointment as the first female solicitor general in 2009; and a year and five months later, appointment as a justice in August of 2010.
To some, this journey suggests that Kagan is a creature of power. She is, more importantly, a student of power, as a practitioner and a scholar, with a liberal bent and a principled turn of mind. As an oral advocate before the Court and a leader of the solicitor general’s office during her brief tenure, she exceeded expectations. But her relationship with the justices during the six arguments she made was sometimes testy, a result of her combativeness and the chief justice’s reported perception that she did not defer enough to the bench.
In the 20 years before she got there, she spent 14 as a problem-solver and six as a scholar. As a justice, she is both. Her judicial opinions are fresh in part because they reflect what she has learned by immersing herself in what is often for her a new area of law and thinking her way to a resolution of the case. Her approach as a justice is strikingly deliberate: In the four Court terms before the current one, she wrote fewer opinions than any of her colleagues—60 percent of the average for the other eight justices.
Kagan’s openness of mind serves her well on a court that is deeply conservative yet led by a chief justice who, by most accounts, is concerned about the Court’s legitimacy and pursues common ground. The justices did that last term to a surprising degree, with two-thirds of the cases unanimously decided. (On the other hand, the University of Chicago’s David Strauss told The New York Times, “A lot of the unanimity is ersatz,” because many of the decisions were narrow, to avoid surfacing severe disagreements among justices.) Kagan’s undogmatic approach means that she, like Roberts, tries to find opportunities for common ground. A case may bitterly divide the Court, but the next one brings a new day. She is eager to be influential on the Court.
For that reason, her dissenting vote has been missing in cases where you might expect to find it. In 2013, the Court denied an appeal to review the outrageous practice in Alabama of state trial judges having the power to overrule juries that don’t impose the death penalty on a convicted criminal. Justice Sonia Sotomayor responded with a powerful dissent joined in part by Breyer, in which she listed each of the 95 cases where judges had overridden juries and turned a life sentence into a death sentence. During a public conversation at Yale Law School, journalist Linda Greenhouse asked Sotomayor why Justices Ruth Bader Ginsburg and Kagan hadn’t joined so there were enough votes to hear the case. “People don’t join for a variety of reasons,” Sotomayor said. She made very clear that not joining did not necessarily mean not agreeing.
The most dramatic example of a missing Kagan vote was in 2012 in the Affordable Care Act case. In a ruling that will be part of the chief justice’s legacy, Roberts defied almost all predictions by joining the moderate liberals to uphold the statute, 5–4. The Court also ruled on a Medicaid provision of the statute, aimed at covering 17 million people who were uninsured. The act provided that the federal government would fund the expansion if a state committed to undertake it—but the government would no longer fund the state’s current Medicaid program if it refused. By 7–2, the Court ruled the provision unconstitutional as being coercive. Kagan and Breyer joined the conservatives in that decision. To some Court-watchers, Kagan had abandoned the president who appointed her and was a traitor to the liberal bloc.
There was another ruling buried in the case, however: By 5–4, again with Roberts joining the moderate liberals, the Court majority upheld the Medicaid expansion as a voluntary program. The chief justice: “The question here is whether Congress would have wanted the rest of the Act to stand, had it known that States would have a genuine choice whether to participate in the new Medicaid expansion. … We are confident that Congress would have wanted to preserve the rest of the Act.”
It is now widely understood that the chief justice was preparing to overrule the entire statute, but changed his mind, leaving the four other conservatives in the minority and joining the moderate liberals to uphold most of the act. Kagan and Breyer did something similar with their Medicaid votes. By joining Roberts in holding that the Medicaid expansion was constitutional as a voluntary program, they saved part of the expansion. As of March 2015, 28 states plus the District of Columbia, roughly half the country’s population, had opted for the expanded Medicaid program, and six other states were considering doing the same. It remains to be seen how the Roberts court will use this ruling to constrain federal mandates in other joint federal-state programs.
In the January 2015 issue of the Journal of Legal Studies, Lee Epstein, William M. Landes, and Richard A. Posner update ideological rankings they made of all justices from 1937 to 2009 in their 2013 book, The Behavior of Federal Judges. This time, they included Kagan based on her first three terms as a justice. They found that in high-profile 5–4 cases, Roberts ranks as the fourth-most conservative justice in the last three-quarters of a century—that “he is a reliable conservative in the most closely contested cases.” Where there are fewer than four dissents, he ranks 22nd among conservative justices—“moderate when his vote can’t change the outcome.” Similarly, in high-profile 5–4 cases, Kagan is the sixth-most liberal justice, but in decisions with fewer than four dissents, the 10th-most liberal. Sotomayor’s voting follows the same pattern, the authors report: The shift to the right in cases where Kagan’s and Sotomayor’s votes can’t make a difference “makes them look moderate,” the article comments. “A moderate image is attractive to many judges, owing to a general dislike of ‘political’ judges.”
Harvard president Lawrence Summers (center) picked Kagan to be dean of the law school in 2003, replacing Robert C. Clark (left).
The larger point is that Kagan, like Roberts, appears to be a strategic voter. No case in Kagan’s time on the Court has had greater consequences than the Affordable Care Act case, so it wouldn’t be surprising if her vote on the Medicaid provision was strategic in the sense of paying close attention to the benefit of joining the chief justice versus the cost of joining Ginsburg and Sotomayor in dissent. Since Kagan wrote no opinion in the case, why she voted as she did remains a mystery. A common speculation is that she rewarded Roberts’s moderation with her own, showing she could be a partner in shaping both consensus and a more consensus-driven Court. For many liberals, the more striking fact is that the Epstein, Landes, and Posner analysis of all cases where the justices were divided ranks Kagan as the current Court’s most liberal member, with Ginsburg and Sotomayor a bit more moderate, and Breyer the most moderate of the four. The only former justices since 1937 ranked to the left of Kagan are William J. Brennan Jr., William O. Douglas, and Thurgood Marshall.
When Kagan writes her own opinion, there is no mystery where she stands. Kagan has taught herself how to write judicial opinions that “reach a multitude of minds from the eminence of the judicial office,” as the legal scholar Paul Freund wrote about the ambition of the justice for whom he had clerked, Louis D. Brandeis, a great justice also with no prior experience as a judge.
This February, a majority of the Court seemed to contort legal logic to overturn the conviction of a commercial fisherman under a federal criminal statute primarily intended to restore trust in financial markets. He was convicted of disposing of evidence, by tossing back into the sea undersized fish he had unlawfully caught. Kagan contended in her dissent that the Court’s main opinion relied on “never-before-propounded, not-readily-explained interpretive theories” to defy “what Congress wrote and what Congress wanted.”
The ruling for the fisherman was a response to “overcriminalization and excessive punishment in the U.S. Code,” she wrote, and she agreed that both are acute problems. The law under which he was convicted is “a bad law—too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion.” But, she concluded, “this Court does not get to rewrite the law.” She was joined in the dissent by Justices Scalia, Kennedy, and Thomas, the first time she had written for that alignment.
NOTHING IN THE THOUSANDS of pages of writing Kagan submitted as a nominee truly foreshadowed the voice she is developing as a justice. The closest harbinger may have been a stirring tribute she wrote to Thurgood Marshall when he died in 1993. She began by describing how “the ordinary people of Washington”—“some 20,000 of them”—paid their respects to him and his flag-draped casket lying in state at the Supreme Court. “One left a yellowed slip opinion of Brown v. Board of Education,” she noted, the historic school desegregation decision that Marshall won as an advocate. She captured his sometimes wicked sense of humor: “He once came back from conference and told us sadly that the other Justices had rejected his proposal for a new Supreme Court rule. ‘What was the rule, Judge?’” she and his other law clerks asked. “‘When one corporate fat cat sues another corporate fat cat,’ he replied, ‘this Court shall have no jurisdiction.’” She conveyed the disquieting truth that “most of the stories, if told by someone else, would have expressed only sorrow and grimness,” because they were about “daily humiliation and abuse” from “growing up black in segregated Baltimore.”
Beyond having a mind that remained “active and acute” when he was 80, the year she clerked for him, Marshall “had the great lawyer’s talent (a talent many judges do not possess) for pinpointing a case’s critical fact or core issue,” which came from “his understanding of the pragmatic—of the way in which law worked in practice as well as on the books, of the way in which law acted on people’s lives.” And he “believed that one kind of law—the Constitution—was special, and that courts must interpret it in a special manner.” America’s fundamental law, to Marshall, “demanded that the courts show a special solicitude for the despised and disadvantaged.” It had taken the United States 200 years to gain the respect for individual freedoms and human rights now regarded as fundamental. And that came about only because some Americans refused to accept “outdated notions of ‘liberty,’ ‘justice,’ and ‘equality.’” The credit for the progress, Kagan observed, “belongs to people like Justice Marshall.”
Her most significant majority opinion so far came in June of 2012 in a 5–4 split, this time with Kennedy joining the moderate liberals to make a majority as he had in related cases for many years. The Court ruled that it is a violation of the Eighth Amendment’s ban on cruel and unusual punishment to give mandatory sentences of life without parole for juveniles convicted of murder.
Roberts wrote a stern dissent in which Justices Samuel Alito, Antonin Scalia, and Clarence Thomas joined. He said, “Determining the appropriate sentence for a teenager convicted of murder presents grave and challenging questions of morality and social policy. Our role, however, is to apply the law, not to answer such questions.” But the Kagan opinion had hallmarks of a compromise meant to attract and hold Kennedy’s vote. It left to the states the responsibility for answering those questions. They retained the option of imposing a life-without-parole sentence, after weighing the details of the crime and a young offender’s “immaturity, impetuosity, and failure to appreciate risks and consequences”—factors making a child different from an adult and making unconstitutional the harsh penalty of an irrevocable life sentence.
By the spring of 2013, it was clear Kagan had found her voice as a justice, and, when there was no common ground, she felt no compunction about using it to attack an opinion she felt was deserving of scorn. By 5–3 (Sotomayor had recused herself), the Court ruled that a group of merchants could not bring a class action against a company when each had signed a contract requiring they make complaints through individual arbitration.
“Here is the nutshell version of this case, unfortunately obscured in the Court’s decision,” Kagan wrote. “The monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse.”
She added, “And here is the nutshell version of today’s opinion, admirably flaunted rather than camouflaged: Too darn bad.”
Kagan’s most impressive opinion came toward the end of last term in Town of Greece v. Galloway, the major ruling about the role of religion in government. By 5–4, conservatives over moderate liberals, the Supreme Court ruled that the town of Greece, New York, outside Rochester, did not violate the First Amendment’s ban on government favoring a particular religion when it, for many years, allowed Christian ministers to open town meetings with Christian prayers.
This oil painting of Elena Kagan hangs in the Harvard Law School, commemorating the years she served as dean there.
Relying on a 1983 precedent that said it was constitutional for Nebraska’s legislature to begin its morning sessions with nonsectarian invocations by various clergy members, Kennedy wrote for the majority that Greece’s town meetings were like Nebraska’s sessions, with the prayers merely ceremonial, “acknowledging the central place that religion, and religious institutions, hold in the lives of those present.”
After describing the Nebraska session, Kagan wrote, “It is evening in Greece, New York, and the Supervisor of the Town Board calls its monthly public meeting to order.” The first order of business: “The pastor steps up to a lectern (emblazoned with the Town’s seal) at the front of the dais, and with his back to the Town officials, he faces the citizens present. He asks them all to stand and to ‘pray as we begin this evening’s town meeting.’ (He does not suggest that anyone should feel free not to participate.)” He prays “for the guidance of the Holy Spirit”—the risen Christ. “After the pastor concludes, Town officials behind him make the sign of the cross, as do some members of the audience, and everyone says ‘Amen.’”
She continued, “Let’s count the ways in which these pictures diverge.” The Nebraska sessions were for lawmakers, the chaplain spoke only to lawmakers, and the prayers were in the Judeo-Christian tradition rather than advancing one faith. “Greece’s town meetings, by contrast, revolve around ordinary members of the community” who are actively taking part in the town’s governance and “the prayers there are directed squarely at the citizens. Remember that the chaplain of the month stands with his back to the Town Board; his real audience is the group he is facing—the ten or so members of the public, perhaps including children” and “he typically addresses those people, as even the majority observes, as though he is ‘directing [his] congregation.’” To Kagan, “no one can fairly read the prayers from Greece’s Town meetings as anything other than explicitly Christian—constantly and exclusively so.” For nine years, all of the Greece monthly chaplains were Christian. When citizens sued the town for favoring one religion, “a Jewish layman, a Wiccan priestess, and a Baha’i minister appeared at meetings” for a short time. Then the town “resumed its practice of inviting only clergy from neighboring Protestant and Catholic churches.”
Why was that unconstitutional? “The government (whether federal, state, or local) may not favor, or align itself with, any particular creed,” especially “when officials and citizens come face to face in their shared institutions of governance.” The town of Greece need not be “religion- or prayer-free.” But it did need to recognize that “we are a pluralistic people” and to “take especial care to ensure that the prayers” offered at the beginning of meetings “seek to include, rather than serve to divide.”
Justice Alito voted with the majority, but wrote his own sour concurring opinion that took offense at Kagan’s dissent: “All that the Court does today is to allow a town to follow a practice that we have previously held is permissible for Congress and state legislatures.” In using “rhetoric and highly imaginative hypotheticals” to suggest otherwise, “the principal dissent goes far astray.” Alito sought to make Kagan’s dissent seem like a radical departure from settled law. It was also the first effort by another justice to call attention to and apparently try to undermine Kagan’s style of opinion-writing, presumably because of its effectiveness. Alito was right about one thing: The opening and closing of Kagan’s opinion employed rhetoric in the sense of eloquence.
“For centuries now,” she wrote, “people have come to this country from every corner of the world to share in the blessing of religious freedom. Our Constitution promises that they may worship in their own way, without fear of penalty or danger, and that in itself is a momentous offering. Yet our Constitution makes a commitment still more remarkable—that however those individuals worship, they will count as full and equal American citizens. A Christian, a Jew, a Muslim (and so forth)—each stands in the same relationship with her country, with her state and local communities, and with every level and body of government. So that when each person performs the duties or seeks the benefits of citizenship, she does so not as an adherent to one or another religion, but simply as an American.”
For the justices in the majority, for students of constitutional law, and for journalists reporting about the Court, the case was about the role of religion in government. For Kagan, however, it was about what it means to be a citizen in a pluralistic society and why the Founding Fathers were right to limit what government can do to impinge on each citizen’s liberty, by prohibiting it from favoring one religion. Her opinion was about the law, but also about a tenet of the nation.
Here is the closing section of her dissent:
In 1790, George Washington traveled to Newport, Rhode Island, a longtime bastion of religious liberty and the home of one of the first communities of American Jews. Among the citizens he met there was Moses Seixas, one of that congregation’s lay officials. The ensuing exchange between the two conveys, as well as anything I know, the promise this country makes to members of every religion.
Seixas wrote first, welcoming Washington to Newport. He spoke of “a deep sense of gratitude” for the new American Government—“a Government, which to bigotry gives no sanction, to persecution no assistance—but generously affording to All liberty of conscience, and immunities of Citizenship: deeming every one, of whatever Nation, tongue, or language, equal parts of the great governmental Machine.” The first phrase there is the more poetic: a government that to “bigotry gives no sanction, to persecution no assistance.” But the second is actually the more startling and transformative: a government that, beyond not aiding persecution, grants “immunities of citizenship” to the Christian and the Jew alike, and makes them “equal parts” of the whole country.
Washington responded the very next day. Like any successful politician, he appreciated a great line when he saw one—and knew to borrow it too. And so he repeated, word for word, Seixas’s phrase about neither sanctioning bigotry nor assisting persecution. But he no less embraced the point Seixas had made about equality of citizenship. “It is now no more,” Washington said, “that toleration is spoken of, as if it was by the indulgence of one class of people” to another, lesser one. For “[a]ll possess alike … immunities of citizenship.” That is America’s promise in the First Amendment: full and equal membership in the polity for members of every religious group, assuming only that they, like anyone “who live[s] under [the Government’s] protection[,] should demean themselves as good citizens.”
For me, that remarkable guarantee means at least this much: When the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another. And that means that even in a partly legislative body, they should not confront government-sponsored worship that divides them along religious lines. I believe, for all the reasons I have given, that the Town of Greece betrayed that promise. I therefore respectfully dissent from the Court’s decision.
Kagan grounded in history the elementary point about political philosophy as well as law on which the case turned—that the different identities of citizens disappear when they enter the public sphere and become simply Americans. Sean Wilentz said of his former student’s opinion: “It’s rare that anyone in American public life, whether a politician or a judge, understands what words an occasion calls for and rarer still for that figure to be able to rise to the occasion. She is doing both. Eloquence is not a prerequisite for being a great justice, but it is an enormous asset.”
ON A WALL AT HARVARD LAW School, there is a lovely painting of Kagan to commemorate the six years she served as dean there, from 2003 to 2009. In a dark pantsuit and rose-colored top, she is sitting at a table with an open book in front of her, looking off into the distance. The expression on her face is not easy to describe: That’s what makes the painting affecting. The painter, Burton Philip Silverman, said he found in her “an elusive psychological dimension” that is “searching and very human” yet “scholarly and reassuring.” That’s what he tried to capture. She was 53 when the painting was finished in 2013, four years after she left the law school to become solicitor general, three years after she became a justice. Her face bears signs of hard experience: pouches under her eyes, a gaze reflective but worn and appraising.
A friend of Kagan’s from her Harvard days observed that, comparing what she was like as a new justice at 50 and what she is like now as a five-year veteran about to turn 55, her outlook is both more buoyant as she masters the challenges of the job and more solemn as she lives with the weight of the responsibility. In its depiction of her eyes especially, the painting conveys both. Kagan is young as justices go. If she stays on the bench until she reaches the age of the oldest current justice, she has another 27 years to make her full mark. But she is already expanding the role of Court opinions and, in doing that, of a Supreme Court justice. The painting is accurate in depicting her as a figure to reckon with in history.