This post is from a non-lawyer for non-lawyers. I hope to convey why I think Justice Kagan is so good at what she does, and I do this by talking about a lot of examples of Supreme Court cases (in language that I hope everyone can follow).

Elena Kagan, the 112th Justice of the Supreme Court, is one of my heroes. She is one of the best questioners at Oral Arguments, and her world view is optimistic yet pragmatic. Fundamentally, she wants to connect with people so that everyone is heard. She writes with clarity so that everyone — even non-legal folks like myself — can understand. And she speaks with humility and empathy so that she and her “adversary” can see each other’s points and work together on finding the right answer, rather than just “winning”.

And honestly, she loves what she does. She just has fun with it, and occasionally she’s a huge dork! In 2015, she wrote the majority opinion for Kimble v Marvel Entertainment, a case involving the royalties to the inventor of a “web-slinging toy”, where she filled her opinion with Spidey puns:

  • “Patents endow their holders with certain superpowers, but only for a limited time,”
  • “The parties set no end date for royalties, apparently contemplating that they would continue for as long as kids want to imitate Spider-Man (by doing whatever a spider can),”
  • “Indeed, [prior case law’s] close relation to a whole web of precedents means that overruling it could threaten others,”
  • “What we can decide, we can undecide,” she concluded. “But stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: ‘SpiderMan,’ p. 13 (1962) (‘[I]n this world, with great power there must also come—great responsibility’).”

She literally cited Stan Lee’s comic book! It was such a fun and endearing opinion; you can tell she really had a blast. Similarly, in 2011 there was a campaign finance case (Arizona Free Enterprise v. Bennett), Justice Kagan’s dissenting opinion commented on the “chutzpah” of the people challenging public financing on a bold and strange argument.

Her writing is direct. Her writing is accessible. And her writing is relatable. I wish every Justice (no matter their ideology or methods) put as much thought and consideration into their communication as she does.

The Queen of Oral Arguments

Seriously, Justice Kagan is *so* good!

She is easily one of the smartest and most qualified Justices. She’s probably the best questioner at oral arguments; she can distill the essence of a case down succinctly.

In Helsinn Healthcare v. Teva Pharmaceuticals, which is about whether a private sale of an invention voided patent protections (because it can only be patented if it hasn’t been sold before). The law says that “a person shall be entitled to a patent unless the patent was … in public use, or on sale, or otherwise available to the public [prior to the filing.]” I really struggled to follow the arguments of this case, because I’m not a lawyer. Everyone was very focused on the “otherwise” clause, and how to parse it linguistically.

Then Justice Kagan asked a hypothetical that really helped clarify for me what everyone was talking about: “suppose I say don’t buy peanut butter cookies, pecan pie—this is the key one, ready—brownies, or any dessert that otherwise contains nuts. Do I—do I violate the injunction if I buy nutless brownies?” That was just classic Kagan. It was a very succinct and persuasive question. I was finally able to figure out why this “otherwise” clause’s interpretation would such a large impact on how this case could come out.

As another example, in 2016, the Court decided 6-2 in Bank Markazi v. Peterson that Congress had not did not violate separation of powers by passing an act which ended up resolving an issue which had been concurrently being litigated in the courts. Chief Justice Roberts was in the dissent, and in his dissenting opinion, he argues that:
1) The Court says it would reject a law that says “Smith wins” because such a statute “would create no new substantive law.”
2) This actual law in question is still simply picking winners & losers.

In the Chief’s opinion, the phrase “Smith wins” appears 6 times, as he really leans into that hypothetical to hammer home his point that he thinks the Court is wrong. But where did that succinct way of arguing that comes from? If you check the transcripts of oral arguments, you’ll find that it was none other than Justice Kagan who distilled it down to that pithy framing.

KAGAN
Does that mean, Mr. Olson, if I could, you're conceding that Congress could not say, we have a particular case, Smith v. Jones, Smith ought to win? Congress cannot say that, right?

...

ADVOCATE
Agree that that would implicate concerns about separation of power, just directing a judgment.

But to the extent --

KAGAN
So if that's right, now Congress takes a look at this case and says, we can't just say Smith wins.

And then we just -- we take a look at the case and we say, oh, if you just tweaked the law in this particular way, Smith would win.

So we tweak the law in this particular way for this case only.
But we don't say Smith wins.

We just say we're tweaking the law in this particular case for this case only.

Is that all right?

Richard Feynman said If you can’t explain something in simple terms, you don’t understand it. Justice Kagan (because of how much work she puts into preparing for each case) understands it all. She can explain an issue so simply that even a non-lawyer or a Chief Justice can understand. In all seriousness, Chief Justice Roberts is actually also a great questioner; probably the 2nd best questioner on the Court. But Kagan is #1 in my opinion. The only other Justice in the same ballpark is Justice Sam Alito, and that’s only on the rare occasion when he really wants to destroy someone’s argument, like his book banning question in Citizen’s United or his parade of edge cases in Minnesota Voters Alliance v Mansky (if you’d like to see that, search for “not only does it have to be a political message, but it has to be well-known”).

Listen to Oral Arguments and you’ll hear a lot of her suggest “Well let’s ask Justice X’s question another way.” Whenever you hear that, you’re in for a treat.

Her Approach to Law

Justice Kagan is a textualist. If that term is unfamiliar, it’s probably as it intuitive as it sounds: it means she carefully parses the words of the law and try to figure out what it says not what Congress meant to say.

Although textualism tends to be associated with the Conservative Justices, that’s not always how it shakes out. Justice Scalia famously often found himself ruling in favor of criminal defendants, quipping that “I have defended criminal defendants’ rights—because they’re there in the original Constitution—to a greater degree than most judges have.” In cases like Kyllo v US and US v Jones, he argued that the Fourth Amendment protected defendants against unreasonable searches and seizures in their homes and of their property, because that’s what the Constitution says. Another avowed textualist, Justice Neil Gorsuch, wrote for a unanimous Court in New Prime Inc. v. Oliveira that the original meaning and evolution of the phrase “contracts of employment”  was understood to cover all sorts of work agreements (including “contracting”) when the law was passed during FDR’s 1930’s.

So like I said, Kagan is a very serious textualist. She and Justice Gorsuch are probably the two most serious textualists on the Court, which might surprise some because they often find themselves on opposite sides of high-profile 5-4s, including Trump v Hawaii, Rucho v Common Cause, and Husted v. Philip Randolph Institute. But they both use the tools of textualism as a starting point as they try to interpret the law, even if it ultimately leads them to different conclusions.

Sometimes, we get to see the two go at it with dueling opinions; looking at Kisor v Wilkie as an example, Justice Kagan writes for the Court that stare decisis (i.e. precedent for previous rulings because people organize reliance interests around that stability) wins the day, and a previous case is not overruled. Justice Gorsuch writes a “concurrence” where he attacks this idea (because he believes much less in the importance of precedence than she does), saying “Still, today’s decision is more a stay of execution than a pardon. The Court cannot muster even five votes to say that Auer is lawful or wise. Instead, a majority retains Auer only because of stare decisis.” This example shows that even two textualists can strongly disagree because of how they weight different factors.

Of the “Liberal” (i.e. Democratic-appointed) Justices, Kagan and Breyer are closer to what one might characterize as “moderate” in the sense that they are more likely to occasionally cross over and vote in a decision with the 5 “Conservative” (i.e. Republican-appointed) Justices to produce an opinion that is 6-3 (e.g. Lucia v SEC, which Kagan actually wrote) or 7-2 (e.g. NFIB v Sebelius to make the state Medicaid expansion optional instead of essentially mandatory).

That said, in all of the high-profile cases that the average person might have heard of (e.g. Citizens United, Shelby County, Hobby Lobby, Trump v Hawaii, Rucho, etc), Justice Kagan and the 3 other “Liberals” are all often in the dissent together for 5-4s. Some suggest these 5-4s are (or at the very least really appear to be) political, with the argument being that if the 5 couldn’t even get Breyer or Kagan to join, then they weren’t particularly interested in remaining non-divisive.

She Makes a Great Role Model

Elena Kagan is a legal badass. She was the first female Solicitor General of the United States and the first female Dean of Harvard Law School. She’s the fourth woman on the Supreme Court, and the eight Jewish person. And in addition to all of that, she’s also one of the smartest Justices in generations. A lot of people have a lot of reasons to see her as a role model.

In 2017, I was Captain America for Halloween, so in 2018 I decided to continue the trend of people I look up to.

For Halloween 2018, I dressed up as American hero Justice Elena Kagan.

At one point in an interview, she was asked about best part of being a Justice, and she talked about the importance of the role. When asked about the worst part, she talked about when she loses a case. No one likes to lose. She is very competitive, and while she uses that fire to motivate herself to always be the best she can, she doesn’t let that get in the way of her relationships.

When she was the Junior Justice, she had to be on the cafeteria committee and she got a frozen yogurt machine, which everyone loved. She has a very collegial demeanor with all of her colleagues. She goes to the opera with Justice Ginsburg but she also used to go hunting with Justice Scalia when he was alive (which began after she jokingly promised a Republican Senator she’d do that during the confirmation process).

She famously got along very well with all of the professors at Harvard Law when she was the Dean, and that was one of the reasons she was able to be so effective in that role. She honestly seems like a great person who works hard but also really cares. I can think of no higher praise than that!

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