Elena Kagan was appointed to the United States Supreme Court on August 7, 2010, by President Barack Obama, after a distinguished government and academic career. That background, at least in recent years, is unusual for the Supreme Court. As of 2021, Kagan was the only justice serving who had not been a judge before becoming a member of the Supreme Court. In the 1990s, she worked in President Bill Clinton’s White House as a policy advisor and then as special counsel on the Senate Judiciary Committee. When not in government Kagan was a professor, first at the University of Chicago and then at Harvard. She capped off her academic career by serving as dean of the Harvard Law School between 2003 and 2009; she then served as Solicitor General in the Obama administration, the first woman to do so. As solicitor general, her first oral argument was a daunting one, Citizens United v. Federal Election Commission. She lost, the Court ruling 5-4 that corporations, acting independently, can spend unlimited amounts on elections.

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Unlike Justices Sonia Sotomayor or Ruth Bader Ginsburg, the other women with whom she has served on the Supreme Court, Kagan has maintained a low profile on the Court. She is not a meme or an icon, as was Justice Ginsburg. She has not written biographies or appeared on television, as has Justice Sotomayor. In effect, she has chosen to speak through her incisive opinions and her pointed questioning during oral argument.

In a court with a conservative bent after President Donald Trump’s nomination of three justices, many court watchers see Kagan as evolving into one of the most influential of the liberal judges. Legal reporter Margaret Talbot attributes Kagan’s influence to her “temperament as a bridge builder” the fact that she has more acute political instincts than some of her colleagues, and her status as youngest of the liberal wing. In 2010, when Kagan was nominated, she was widely touted not only because of her intellectual and analytical prowess, but also because supporters predicted she would be able to find consensus even in a deeply divided court. “It’s an incredibly important thing for the court to guard this reputation of being fair, of being impartial, of being neutral and of not being simply an extension of the terribly polarized political process and environment that we live in,” Kagan herself commented (quoted in Wolf).  To find common ground and diminish the reach of conservative opinions, she has sought to frame the legal question raised by each case as narrowly as possible.

Kagan has authored significant majority opinions, such as her landmark opinion in Miller v. Alabama. Miller was a 5-4 decision, holding that mandatory life imprisonment without parole for defendants convicted of murder who were under age eighteen at the time of their crimes violated the Eighth Amendment to the United States Constitution. Drawing in part on adolescent neurodevelopment studies, Kagan wrote: “Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself – no matter how brutal or dysfunctional.” The decision resonated across the country; 29 states saw their mandatory sentencing statutes invalidated. Juveniles who had been sentenced under the mandatory regimes were resentenced. Its rationale—legitimizing a different view of juvenile offenders grounded in science—led to changes in state policy-making in other areas, particularly the practice of trying juvenile offenders in adult courts.   

Kagan’s writing is clear and accessible to the lay reader, sprinkled with common sense analogies, and even Yiddish. In Arizona Free Enterprise Club v. Bennett, she noted in her dissent: “So [Petitioners] are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received (but chose to spurn) the same financial assistance. Some people might call that chutzpah.” At least one opinion was downright whimsical.  Kimble v. Marvel Entertainment was an otherwise dry patent case. Kimble had a patent on a toy that allows children (and, Justice Kagan added, “young-at-heart adults”) to role-play as “as a spider person” by shooting pressurized foam string from the hand, which looked like webs. Her decision was replete with references to superpowers: she commented that “patents endow their holders with certain superpowers, but only for a limited time”; she referred to a “superpowered form of stare decisis [respect for precedent],” and she ended with a quote from Spiderman, “[I]n this world, with greater power there must also come—great responsibility.” (She is reportedly a comic book fan.)

Writing for the Court majority in Descamps v. United States, to reverse a sentence based on an incorrect reading of the relevant statute, Kagan noted that the lower court was wrong in viewing the crime “as containing an infinite number of sub-crimes corresponding to ‘all the possible ways an individual can commit’ it.” To illustrate, she added an analogy from the game of Clue in this parenthetical” “(Think: Professor Plum, in the ballroom, with the candlestick? Colonel Mustard, in the conservatory, with the rope, on a snowy day, to cover up his affair with Mrs. Peacock?).”

But after the Supreme Court was transformed with the deaths of Justices Antonin Scalia and Ruth Bader Ginsburg in 2016 and 2020 and the retirement of Justice Anthony Kennedy in 2018, Kagan has authored stinging dissents. She dissented in Rucho v. Common Cause, a 5-4 decision that barred federal courts from hearing partisan gerrymandering claims. She delivered that dissent not simply in writing but also orally. Her voice filled with fury and then sorrow, she declared that the majority was “throwing up its hands” and insisting that nothing could be done about the redrawing of voting districts, even when the results were “anti-democratic in the most profound sense.” She closed with, “With respect, but deep sadness, I dissent.”

Likewise, Kagan dissented in Town of Greece v. Galloway, in which a 5-4 majority found that New York may permit volunteer chaplains to open town council meetings with a prayer. The plaintiffs, a Jew and an atheist, argued that the prayers violated the Constitution’s Establishment clause. The majority rejected the argument, finding that the prayers were consistent with the tradition of Congress and state legislatures, the town did not discriminate against minority faiths in determining who may offer a prayer, and the prayer did not coerce the participation of members of other faiths. Kagan argued that this setting was different from Congress and state legislatures. In the intimate setting of local government meetings, in which a town council acts not only as a legislature but also as a site where local government interacts with residents, and in which Christian prayer-givers overwhelmingly delivered the prayer, the opening prayer was constitutionally flawed. "When the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another," Kagan said. "And that means that even in a partly legislative body, they should not confront government-sponsored worship that divides them along religious lines."

Kagan dissented in another case involving religion exercise, Tandon v. Newson, in which the Supreme Court barred California’s Covid-based restrictions on in-home gatherings to members of no more than three different households. The plaintiffs, who held Bible studies and prayer meetings in their home, claimed that the restrictions interfered with their First Amendment right to the free exercise of their religion. The trial court and the appellate court had sided with California, relying on longstanding Supreme Court precedent that secular laws that are applicable to everyone are not unconstitutional just because they may burden religious exercise. Five members of the Supreme Court, however, in an unsigned order, held the restriction unconstitutional. Kagan was characteristically direct: she accused the majority of disregarding law and facts, ignoring the uncontested testimony of California’s public health expert just because it is “inconvenient” for the majority’s preferred result.

One of Kagan’s most pointed dissents was in Abood v Detroit Board of Education, in which the Court held that public employee unions cannot collect fees from nonmembers to defray the costs of collective bargaining. Kagan accused the court of "weaponizing the First Amendment in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy." Going forward, “[p]ublic employee unions will lose a secure source of financial support. State and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces."

With the addition of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett to the court, Kagan’s dissents focused more and more on the majority’s apparent assault on judicial precedent. In a 2019 decision, Knick v. Township of Scott, the court held that a property owner can sue the government to claim that the government’s actions were an unconstitutional taking, which the property owner can take directly to federal court rather than first litigating in state court, as decades of precedent had required. Kagan claimed that with that decision, the majority “smashes a hundred-plus years of legal rules to smithereens.” She was predicting—or warning—of the new majority’s efforts to dismiss precedent in other areas, presumably including abortion. She said: “But maybe the majority should take the hint. When a theory requires declaring precedent after precedent after precedent wrong, that’s a sign the theory itself may be wrong. The majority’s theory is just that.” She cited Justice Stephen Breyer’s dissent only the month before when he said: “Today’s decision can only cause one to wonder which cases the Court will overrule next.” To which Kagan responded caustically, “Well that didn’t take long. Now one may wonder yet again. “

In the 2020s, Elena Kagan has emerged as one of the Supreme Court’s most forceful defenders of voting rights, reproductive freedom, and institutional legitimacy.

In 2021, Kagan authored a major dissent in Brnovich v. DNC, in which the court upheld Arizona voting laws that discard votes cast out of precinct, even votes for president, governor, or some other race in which the voter could have cast a ballot anywhere in the state. In addition, the court upheld a criminal statute barring anyone but a voter’s family member or caregiver from returning early ballots for another. Kagan wrote that marginalized voters (African-American, Latino, and Native American) are disproportionately more likely to have their votes thrown out and concluded that upholding these laws allows for discrimination in voting in violation of Section 2 of the Voting Rights Act. Since then, she has continued to advocate loudly for the Voting Rights Act, dissenting in cases such as Abbott v. League of United Latin American Citizens (2025), in which she criticized the court for overriding lower-court findings on racial discrimination in voting maps.

In the summer of 2022, following the leaked draft opinion and eventual ruling in Dobbs v. Jackson Women’s Health Organization, Kagan joined Justices Sonia Sotomayer and Stephen Breyer in a dissent criticizing the court’s decision to overturn Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). The ruling allows state governments the authority to regulate most aspects of abortion, limiting if not extinguishing abortion access in much of America. The dissent argues that the ruling stripped women of a constitutional right that had been upheld for decades.

Later that year, Kagan publicly addressed the consequences of Dobbs. In a speech at Temple Emanu-El in New York, she warned that “judges create legitimacy problems for themselves” (Sherman 2022) when consistently overturning precedent, cautioning that such decisions look political rather than judicial.

Throughout 2022 and 2023, Kagan continued to dissent in most cases: West Virginia v. EPA, Vega v. Tekah, Trump v. United States, Free Speech Coalition v. Paxton, and more.

In the summer of 2023, Kagan stated support for an ethics code for the Supreme Court. After the first formal code was adopted, she went further by suggesting ways to enforce it, such as appointing a panel of outside judges to review allegations of wrongdoing—an unusual call for institutional accountability from a sitting justice. 

More recently, Kagan has sharply criticized the court’s increased use of the “shadow docket,” a procedure to expediate emergency decisions. She has warned that expedited emergency rulings, without full briefing and oral argument, undermine transparency and public trust, particularly in cases regarding presidential power (such as a decision allowing the president to remove federal agency workers without cause). And she has been an important voice in dissenting from the court’s majority’s efforts to limit administrative power, for example in West Virginia v. EPA, in which the Court decided that the Clean Air Act does not give the Environmental Protection Agency authority to limit carbon dioxide emissions from power plants by shifting them away from burning coal. 

In June 2025, Kagan wrote the majority opinion upholding how the Federal Communications Commission funds its Universal Service Fund, preserving a program subsidizing phone access for millions of low-income, rural, and underserved American communities.

Kagan is especially known for her clear and eloquent writing style. In the West Virginia v.  EPA case she said, “Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy. I cannot think of many things more frightening.”

While Kagan has surely worked to be a “bridge builder,” advocating for narrow decisions and arguably less predictable in the positions that she takes than her peers, there are limits—clear limits.  And when she reaches those limits, in clear and unmistakable prose, she dissents.