Path to the Supreme Court
Elena Kagan holds two distinctions that frame everything else. She is the last justice confirmed the old way, 63–37, with five votes from the opposing party, after hearings conducted while everyone in the room knew she had once called such hearings 'a vapid and hollow charade.' And she is the first justice in thirty-eight years to arrive without a single day's service as a judge, the Court's finest working writer trained everywhere except a bench. Her career before the Court is a study in the modern confirmation system, including its misfires; her career on it is a study in what a persuader does when the votes to persuade run out.
She was born in Manhattan on April 28, 1960, the middle child of three, and raised in an apartment at West End Avenue and 75th Street. Her father, Robert Kagan, was a lawyer who represented tenants' associations; her mother, Gloria, taught at Hunter College Elementary School with a rigor her daughter's classmates still remember; both of Elena's brothers became public school teachers, which locates the family's faith precisely. At twelve she conducted her first recorded negotiation with an institution, pressing Rabbi Shlomo Riskin of Lincoln Square Synagogue for a bat mitzvah when the congregation had never held a formal one; she got it, on her terms in part, reading from the Book of Ruth on a Friday night, the synagogue's first. At Hunter College High School the ambition was already public: her 1977 yearbook photograph shows her in a judge's robe holding a gavel, over Felix Frankfurter's sentence 'Government is itself an art, one of the subtlest of arts.'
Princeton made her a historian: summa cum laude in 1981, editorial chairman of the Daily Princetonian, and a senior thesis, 'To the Final Conflict: Socialism in New York City, 1900–1933,' whose title opposition researchers would rediscover three decades later. An M.Phil. in politics at Oxford's Worcester College followed, then Harvard Law School, magna cum laude in 1986, supervising editor of the law review. She clerked for Judge Abner Mikva on the D.C. Circuit and then, in October Term 1987, for Thurgood Marshall (§96), who nicknamed his five-foot-three clerk 'Shorty' and put her to work on the dissents of a Court moving away from him; the lesson in writing for the future was not wasted. Two years as a brief-writing associate at Williams & Connolly were the whole of her private practice; the fact that she had never argued an appeal would become a hearing exhibit twice over.
The University of Chicago gave her a faculty post in 1991 and a colleague named Barack Obama, then a part-time lecturer. It also gave her the occasion for the most quoted book review in the modern literature of the Court: her 1995 essay on the confirmation process, in which she wrote that the hearings had become 'a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints.' She had seen the machinery from inside, as special counsel to the Senate Judiciary Committee for the 1993 hearings that confirmed Ruth Bader Ginsburg (§107). President Clinton pulled her to Washington in 1995, first as associate White House counsel, then as deputy director of the Domestic Policy Council, where tobacco regulation became her signature fight. In June 1999 Clinton nominated her to the D.C. Circuit; Chairman Orrin Hatch scheduled no hearing, the nomination lapsed with the Congress, and the seat sat empty until President Bush filled it in 2003 with John Roberts (§109). The parlor game plays itself; the record simply notes that the two most effective legal writers of their generation were, four years apart, candidates for the same chair.
Harvard took her back, and in 2003 made her the law school's first woman dean. The deanship became the legend her judgeship never had time to be: she ended the faculty's decades-long appointments cold war, hired across the ideological spectrum, the conservative Jack Goldsmith among the arrivals and a D.C. Circuit judge named Brett Kavanaugh (§114) among the lecturers, raised $476 million, and bought the students free coffee, a detail every profile keeps because it compresses the method: small gifts, large coalitions. Her scholarship peaked in the same years; 'Presidential Administration' (2001), on a President's power to direct the agencies, won the American Bar Association's award for the year's best administrative-law article and reads today as the user's manual for the government she would spend her judicial career refereeing. In 2009 President Obama made her the first woman Solicitor General, confirmed 61–31; the first appellate argument of her life was the Citizens United reargument that September, and she lost it five to four. When John Paul Stevens (§101) retired the next spring, Obama nominated her on May 10, 2010. The hearings produced no charade and one classic: asked by Senator Lindsey Graham where she had been on the Christmas Day of the underwear bomber, she answered, 'You know, like all Jews, I was probably at a Chinese restaurant,' and the room, and the senator, surrendered. Confirmed August 5, 2010, with Republicans Graham, Lugar, Gregg, Collins, and Snowe in support, she was the first justice since Rehnquist (§100) and Powell (§99) in 1972 to join the Court without judicial experience, and the fourth woman ever to sit.
On the Supreme Court
Her first term was spent partly on the sidelines, recused from twenty-eight cases her Solicitor General's office had touched. What emerged when the recusals cleared was the Court's best prose, deployed on two settings. The first was the working majority: Cooper v. Harris, policing racial gerrymanders; Kisor v. Wilkie, saving agency deference by narrowing it, the preservationist's bargain that defined her middle years; and Kimble v. Marvel, a patent case about a Spider-Man toy that she turned into a comic-book-annotated lecture on stare decisis, Stan Lee's credo about great power and great responsibility cited in the United States Reports. The craft was the strategy. For a decade on a 5–4 Court she wrote to hold five, and often did.
The second setting arrived with the 6–3 Court, and the great dissents came in sequence. In Rucho v. Common Cause (2019), when the majority declared partisan gerrymandering beyond judicial reach, she wrote: 'For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.' 'Of all times to abandon the Court's duty to declare the law, this was not the one.' She closed with the sentence that has become her signature: 'With respect but deep sadness, I dissent.' In West Virginia v. EPA (2022) she wrote that the Court had appointed itself 'the decision-maker on climate policy,' adding, 'I cannot think of many things more frightening.' And in Loper Bright (2024), which overruled Chevron, the author of 'Presidential Administration' delivered the eulogy: 'As if it did not have enough on its plate, the majority turns itself into the country's administrative czar.' Alongside the dissents runs the institutionalist's campaign in her own voice: her September 2021 objection that the Texas abortion order was 'emblematic of too much of this Court's shadow-docket decisionmaking,' which, she wrote, 'every day becomes more unreasoned, inconsistent, and impossible to defend,' and her public urging, in later remarks, that the Court adopt an ethics code someone can actually enforce.
The numbers describe the two Courts she has served on. By the Supreme Court Database's coding, as computed for this site, she has cast a liberal vote in 61.9 percent of more than a thousand cases against a 47.4 percent contemporary average, while dissenting in 17.8 percent, barely above the average rate: the profile of a justice who fights selectively and wins her share. She is also the only member of the present Court with no measured circuit-court ideology score, for the simple reason that she is the only one who was never a lower-court judge. This site's coding of the 2025 term shows the pattern intact: five opinions of the Court, three of them unanimous, beside the liberal wing's principal dissents, hers to write in Louisiana v. Callais, National Republican Senatorial Committee v. FEC, Mullin v. Doe, and the Exxon case, with solo dissents in Havana Docks and Wolford v. Lopez; in the tariff case she concurred in part and in the judgment, writing for Sotomayor (§111) and Jackson (§116).
Fifteen terms have divided her career into halves that test a single talent two ways. On the Court she joined, persuasion had a market: a swing vote to win, coalitions to assemble, and a dean's toolkit that worked. On the Court she serves now, the market has thinned, and the persuader writes for Congress, for the law schools, and for a future majority that does not yet exist, the assignment her old boss Marshall knew well. Whether the most gifted coalition-builder of her generation reached the Court a decade too late for her gifts, or is instead accumulating the credibility that will matter enormously in some crisis not yet arrived, is the question her remaining terms will answer. She continues to serve.
The Voting Record
How Kagan voted in the 1,015 cases the Supreme Court Database records from the 2009 term through the 2024 term, using that database’s classification of each vote as liberal or conservative. The gold tick on each bar is the rate for the other justices sitting on those same cases.
Across the whole career Kagan voted with Sotomayor more than with anyone else — the same side of the judgment in 81.8% of their 539 divided cases — and with Thomas least, at 30.8%. See the matrices →Compared against the 7 colleagues Kagan shared at least 300 divided cases with.
And Kagan ended 7.7 points more liberal relative to those colleagues than at the start — the twelfth-largest shift of the 27 justices with a long enough record to measure. See who changed →
How liberal is Kagan? The full ideology profile: the record measured, the bloc mapped, and the 15 cases where Kagan broke from it.
Source · The Supreme Court Database (Spaeth, Epstein, Nelson, Martin, et al.) · how these figures are made
Key Decisions
Rucho v. Common Cause
2019Holding · (Dissenting) Partisan gerrymandering claims are justiciable and demand a remedy; 'for the first time in this Nation's history, the majority declares that it can do nothing.'
Role · Kagan wrote the dissent.
Her signature dissent, a passionate warning that the Court was leaving a proven constitutional wrong without remedy.
Read the opinion →West Virginia v. EPA
2022Holding · (Dissenting) The 'major questions doctrine' wrongly strips agencies of authority Congress gave them, making the Court 'the decision-maker on climate policy.'
Role · Kagan wrote the dissent.
The leading liberal defense of the administrative state against the conservative Court's assault on agency power.
Read the opinion →Cooper v. Harris
2017Holding · North Carolina unconstitutionally used race to draw two congressional districts.
Role · Kagan wrote for the Court.
A significant racial-gerrymandering precedent and a display of the craft beneath her reputation — building a cross-ideological majority on technical terrain.
Read the opinion →Loper Bright Enterprises v. Raimondo
2024Holding · (Dissenting) Chevron deference is overruled; Kagan: 'As if it did not have enough on its plate, the majority turns itself into the country's administrative czar.'
Role · Kagan wrote the principal dissent for the three liberal justices.
The author of 'Presidential Administration' delivering the eulogy for agency deference, in the modern Court's defining fight over who interprets regulatory law.
Read the opinion →Go Deeper
Elena Kagan came to the Supreme Court in 2010 without a single day of prior judicial experience — and became one of its most effective liberal justices, a razor-sharp writer and strategist widely regarded as the intellectual match of any conservative on the bench. A former Harvard Law professor and the first woman to serve as dean of Harvard Law School and then as Solicitor General of the United States, she was appointed by Barack Obama to succeed John Paul Stevens (§101). Pragmatic and coalition-minded, she picks her battles, writes to persuade rather than to vent, and has become the Court's most quotable dissenter as its liberal wing shrank to three. Her dissent in Rucho v. Common Cause, protesting the majority's refusal to police partisan gerrymandering, and her dissent in West Virginia v. EPA, warning against the 'major questions' assault on the administrative state, are landmarks of the modern liberal critique of the conservative Court. She has written no memoir and has no full biography; the best approach is the literature on the Roberts Court and her own opinions. Begin with Marcia Coyle's account of the Court she joined, then read the great dissents.
The Bookshelf
A superb narrative account of the Court Kagan joined, and the best starting point given the absence of a Kagan biography. Coyle, a veteran Supreme Court correspondent, tells the story of the Roberts Court through four landmark battles — over health care, guns, race, and campaign finance — showing how the institution actually decides its greatest cases. It sets the stage for Kagan's role as a strategic liberal in an increasingly conservative Court, and it is a first-rate introduction to the modern Court as a whole. Simon & Schuster.
Kagan's signature dissent, and one of the most passionate of the era. When the majority held that partisan gerrymandering claims are political questions federal courts may not decide, she answered that the Court was abdicating its duty in the face of a genuine threat to democracy: 'For the first time in this Nation's history,' she wrote, 'the majority declares that it can do nothing' about a proven constitutional wrong. Marshaling the record of extreme district-rigging, it is the fullest statement of her view that some injuries to self-government demand judicial remedy. Read it as the model of a Kagan dissent — disciplined, urgent, and aimed at the future.
Kagan's central dissent in the battle over the modern regulatory state. When the majority invoked the 'major questions doctrine' to curb the EPA's authority over power-plant emissions, she objected that the Court was arrogating to itself policy choices Congress had assigned to expert agencies — appointing itself, she wrote, 'the decision-maker on climate policy.' A vigorous defense of agency expertise and congressional delegation, it frames the stakes of the Court's assault on administrative power, a theme that runs from here to the overruling of Chevron (§101) in 2024. Read it as the liberal case for the administrative state.
A reminder that Kagan writes majorities as well as dissents. Holding that North Carolina had unconstitutionally used race to draw two congressional districts, she produced a careful, tightly reasoned opinion on the tangled law of racial gerrymandering that commanded a cross-ideological majority. It shows the craft beneath her reputation — the ability to build coalitions and to write with rigor and clarity on technical terrain — and it stands as a significant voting-rights precedent in its own right. Read it beside the dissents to see the full range of her work.
Kagan's most influential scholarship — the canonical modern account of presidential control over the administrative state, drawn from her Clinton White House years. A quarter-century on it is still the reference point, which is why her administrative-law opinions read like someone finishing an argument she started in 2001. Free full text.
The essay that called confirmation hearings a 'vapid and hollow charade' — quoted back at her, endlessly, at her own vapid and hollow charade in 2010. The sharpest self-authored window on Kagan before the bench, and the wittiest thing any sitting justice ever published about the process that seats them. Free full text.
The Reading Path
A researched route through the literature — in order.
- 1.Coyle, The Roberts Court — for the Court she joined and how it decides
- 2.Rucho v. Common Cause dissent — for her signature warning on democracy and gerrymandering
- 3.West Virginia v. EPA dissent — for the liberal defense of the administrative state
- 4.Cooper v. Harris — for the craft of a Kagan majority
Where the Papers Are Kept
Kagan continues to serve, and her judicial papers are not open to researchers. Her pre-Court career, however, is unusually well documented: her years in the Clinton White House are recorded in that administration's archives, and her work as Solicitor General in the Justice Department's files. Her jurisprudence lives in the Court's published opinions. The Federal Judicial Center and Oyez provide the biographical and case record. Visit →
Online Resources
Ideas for Further Research
- The strategist in dissent. Kagan is widely seen as playing a long game — writing to persuade wavering colleagues, to shape lower courts, and to speak to a future Court, rather than merely to protest. Study her rhetorical strategy across the gerrymandering, administrative-law, and religion cases, and ask whether disciplined, coalition-minded dissent is more effective than fiery denunciation at moving the law over time.
- Judging without the bench. Kagan reached the Court straight from academia and government, never having been a judge — as did many earlier justices, but few in the modern era. Weigh the advantages she brought (breadth, institutional perspective, coalition skills) against the value of prior judicial experience, and ask what kinds of preparation best equip a justice, and what the modern preference for sitting appellate judges may cost the Court.
- The major questions doctrine and the future of regulation. Kagan's EPA dissent warns that the conservative majority is dismantling the administrative state by seizing policy decisions Congress delegated to agencies. Trace the 'major questions' doctrine from West Virginia v. EPA through the overruling of Chevron (§101), and ask where the constitutional line falls between agency expertise and judicial or congressional control of the modern regulatory state. Seat lineage: John Paul Stevens §101 → Elena Kagan → (still serving).