What Would Elena Kagan Do?

Since President Obama announced Elena Kagan as his nominee to replace Justice Stevens on the Supreme Court, everyone’s been attempting to predict what type of Supreme Court Justice she might be. Will she be the progressive visionary filling the ideological void left by Justice Stevens’ retirement, or will she take a more moderate stance and work to bridge the divide between the varying factions of the Court? Does her limited public record disguise the fact that she’s secretly super-conservative, or simply make it easier to ensure her confirmation?

I understand the desire to predict her hypothetical future rulings. After all, the Supreme Court plays a significant role in shaping the country, it’s a lifetime appointment, and it would be nice to know what we’re getting before we’ve committed.

Kagan’s Record Is Light on Answers

But the reality is, you can scrutinize every words she’s ever spoken and every action she’s ever taken, and you’re unlikely to end up much closer to knowing what she might do as a Supreme Court Justice. Thus far, Kagan’s public life has been defined by her actions as an advocate — whether advising President Clinton or representing the faculty, students and institution as the Dean of Harvard Law School. Her prior actions as an advocate provide little guidance as to her personal views or her understanding of the Constitution.

Take, for example, the memo she co-authored to President Clinton in 1997. In the memo, she recommended that Clinton endorse an amendment banning late-term abortions to sustain his credibility and prevent Congress from overriding his veto. One can hardly infer her personal stance on abortion based on the memo though, or even her thoughts regarding the Constitutionality of such restrictions. Her recommendation was clearly based on a political calculation rather than any concerns regarding late-term abortions. This isn’t to suggest that she’s lacking such thoughts, just that her personal beliefs about the subject were not part of the analysis.

Unfortunately, we’re not likely to learn much more in the upcoming confirmation hearings. Prior to her last round of confirmation hearings (for Solicitor General), several Senators attempted to elicit her opinions on particular Supreme Court holdings. Her answer?

“The Solicitor General owes important responsibilities to the Court, one of which is respect for its precedents and for the general principle of stare decisis. I do not think it would comport with this responsibility to state my own views of whether particular Supreme Court decisions were correctly decided. All of these cases are now settled law, and as such, are entitled to my respect as the nominee for Solicitor General.”

Or, in the language of non-lawyers: I’m not telling.

She’s certainly not the first person seeking Senate confirmation to avoid disclosing her personal views. To quote Gail Collins of the New York Times, “Everybody knows that the Judiciary Committee hearings on Kagan will consist of senators asking for her opinion on all the hot button issues of the day, and Kagan responding that she could not in good conscience prejudge a case that might someday come before her. And then she will add something flattering about the Constitution.” It’s ridiculous — but it’s also how the system works.

The Case For Kagan

If you can’t look to her past experiences or glean anything from her future confirmation hearings, where can you look?

“[T]he core of Kagan’s experience over the past two decades has been all about moving people of different beliefs to the position she believes is correct. Not by compromise, or caving, but by insight and strength.

Who can promise that she’s not going to authorize secret prisons and offer guns to everyone and criminalize criticism of the government? When George H.W. Bush appointed Justice David Souter, he was convinced he was solidifying the conservative legacy for decades to come. Justice Souter gave us almost two decades of service and more than fifteen years of solidly liberal, rational jurisprudence. Who can say that Kagan won’t head the other direction?

Lawrence Lessig is a brilliant legal scholar, self-identified liberal and close friend of Elena Kagan. And though the last quality might prompt one to take his arguments in support of her nomination, he makes a strong case that she is the ideal candidate to join the Court. In part he argues based on information we do not share; they have been colleagues for the past 20 years and he knows her personal philosophies in a way that we cannot. He promises that she is solidly progressive. But mostly, he argues that Kagan is the best selection from a strategic point of view.

According to Lessig:

[T]he core of Kagan’s experience over the past two decades has been all about moving people of different beliefs to the position she believes is correct. Not by compromise, or caving, but by insight and strength. I’ve seen her flip the other side…I’ve seen her earn the respect of people who disagree with her, and not by either running to a corner to pontificate, or by caving on every important issue. Kagan can see a fight; if she can see a path through that fight, keeping her position in tact, she can execute on it. And even when a victory is obviously not in the cards, she will engage the other side boldly.”

This willingness to actively engage with those who disagree is of critical importance. You see, even after this appointment, the Supreme Court is still going to have a conservative bent. For the progressive Justices to write controlling opinions that bind federal courts across the country, they’ll have to persuade at least a few more conservative colleagues to come around to a more appropriate way of thinking. And Elena Kagan just may be the best candidate for that particular task.

What About Marriage Equality?

Obviously the Supreme Court covers a broad range of subjects. But chances are, if you’re reading this, marriage equality ranks highly on your list of issues that matter. Within the next few years, the Supreme Court will almost undoubtedly be asked to decide the constitutionality of laws that prevent same-sex couples from marrying. The Supreme Court is the final arbiter of constitutionality; when five justices decree something constitutional or unconstitutional, they are correct. As one of those potential five justices on either side, Elena Kagan’s opinions matter.

So what are her thoughts?

Turning back to the questions from the Kagan’s confirmation process for Solicitor General, it’s appears that Kagan has made her opinion clear. Senator John Cornyn asked whether she believes that there is a federal constitutional right to same-sex marriage. She replied, “There is no federal constitutional right to same-sex marriage.”

Disappointed yet? Don’t be. Her statement may appear unambiguous, but it’s not.

Lawyers are tricky and detail-oriented. In providing her answer, Kagan did not state her beliefs. She stated an incontrovertible fact. As previously mentioned, the Supreme Court is the final arbiter of constitutionality. Until five Supreme Court Justices assert that a constitutional right exists, it doesn’t. The Supreme Court has not yet held that there is a federal constitutional right to same-sex marriage; therefore, no constitutional right exists. Kagan’s assertion of the facts does not in anyway reveal her personal beliefs. This might seem counterintuitive, given the clarity of the statement, but it is consistent with her ongoing refusal to provide her personal opinions.

Much like many other issues, we don’t know her personal thoughts on marriage equality. This is likely intentional and perhaps among the many reasons she was selected. Given the current highly-polarized political climate, the confirmation process is likely to run more smoothly because Kagan does not have a significant public record of controversial beliefs. Those opposed to her nomination have limited grounds on which to build a challenge.

Few will deny that she’s incredibly intelligent and has a distinguished professional record. Hopefully this will lead to a smooth confirmation process and we’ll have a new Supreme Court Justice soon.

Before you go! Autostraddle runs on the reader support of our AF+ Members. If this article meant something to you today — if it informed you or made you smile or feel seen, will you consider joining AF and supporting the people who make this queer media site possible?

Join AF+!


Jessica has written 16 articles for us.


  1. This post was absolutely excellent. The next time one of my non-law student/lawyer friends tries to argue that Kagan obviously does not support same-sex marriage because of that one statement, I will just direct them to your final explanation, which was infinitely more concise and clear than I have been putting it.

    That being said, I do think that having someone on the Court who can “reach across the aisle” could be a good thing, but wasn’t that what people expected Sotomayor to do? While I think Kagan may be able to have some influence on Kennedy, will she really be able to sway those justices who are very ideologically opposed to her? Perhaps I’m just too much of a cynic, but on the truly hot-button issues, such as the constitutionality of anti-same-sex marriage laws, I really just don’t see Thomas, Roberts, Alito, and, especially, Scalia siding with the “liberals” (Roberts’ recent surprising opinion in the juvenile life without parole case notwithstanding). And of course, there’s the issue of potentially moving the Court’s policy space further to the right by negating the far-left position.

    Anyway, hopefully all my pessimism will be for naught.

    • I fully agree that Thomas, Roberts, Alito and Scalia are unlikely to support same-sex marriage. I think if we have any hopes, we’ll need Kennedy (and, you know, the rest of the Court).

      As for the concerns about moving further to the right by negating the far-left position, I think there are two things to consider.

      First, I have to imagine Obama was trying to avoid a confirmation battle. Kagan’s limited record should make the confirmation easier, thereby allowing the Senate to move onto other things.

      Second, though, I think the Court’s overall policy space is less important than the majority space. If more of the Justices were leaning our way, it’d be great to have someone who is hanging out on the far left to make the case for future advancements. But when so many major issues come down to the opinion of a single Justice, I’d rather have someone who can secure majorities than someone who will write powerful dissents.

      Essentially, my hope is that although Stevens retirement may move the court slightly to the right, on average, the majorities opinions will move to the left. But we shall see…

  2. because I live overseas or something I often feel that I’m the only one awake on this site when I read stuff, and that people would think I’m sick to stay awake at times when everyone should sleep when I’m commenting.
    Now it’s the first time that it’s in the middle of the night and I’m drunk and not able to read all the smart stuff. Have to watch FlashForward now, will return tomorrow when y’all are sleeping.

  3. This made me think. And thinking hurts when I haven’t had my coffee! Damn you!

    (great article!)

    • Is there an excuse for not yet having had coffee at 11:37 am? I have my doubts.


  4. Is it always like this with a confirmation of a judge to the court? The ambiguous record missing any real comments on controversial issues and no real policy changing views ever stated on the record.

    I don’t know how I feel after reading this on one hand Kagan could be a liberal who knows that to get affirmed she needs to ride the line and on the other hand her clear lack of any views whatsoever could mean she is conservative. It would be great to have a judge who can read the bipartisan divide and navigate accordingly.

    • Since Robert Bork wasn’t confirmed in 1987, confirmation hearings have been a joke. Everyone since then has shied away from answering any real questions.

      I understand why this is frustrating, but from a judicial standpoint, it makes some sense. Judges are supposed to decide cases on their merits, based on the particular situation at hand. If a potential Supreme Court Justice says they’d clearly decide a case one way or another, they’re prejudging the case rather than listening to the merits of the case.

      With regard to Kagan specifically, she does have some opinions on the record…but they’re likely outdated. If you’re interested, you can see some of her thoughts as a young journalist writing for The Daily Princetonian. (http://www.newsweek.com/id/238200).

  5. I just want to say thank you for explaining everything for me. Sometimes I feel like you are a legal eagle, but also a legal fairy

  6. I can’t actually go back in time because all of the time-turners broke during the battle at the Department of Mysteries, also I didn’t start reading autostraddle until June, but I remember coming across this post and then feeling very smart and well-informed. Thanks!

Comments are closed.