JEWISH JUSTICES OF THE UNITED STATES SUPREME COURT

1. JEWISH JUSTICES OF THE UNITED STATES SUPREME COURT THE INCUMBENTS: GINSBURG, BREYER AND KAGAN January 24, 2019 Presented by: Denise J. Karlin, Esq.

2. (JOAN) RUTH BADER GINSBURG (1933-): THE ADVOCATE

3. RUTH BADER GINSBURG: THE EARLY YEARS • Born in 1933 in the Flatbush section of Brooklyn to Nathan and Celia Bader. Father was an immigrant from Russia and mother was born in United States to Austrian parents. She had an older sister who passed away at age 6 when Ruth was 14 months old. Raised as an only child • Nicknamed Kiki and was called Ruth in school because there were several students named Joan in her class • Bader family attended a Conservative synagogue, East Midwood Jewish Center, where Ruth learned some Torah and Hebrew. she became non-observant when she was excluded from the minyan for mourners after the death of her mother. There was a "house full of women", but Ruth, as a 17 year old woman, was excluded. Later in her life she noted that her attitude might be changing, following her attendance at a bat mitzvah ceremony in a more liberal branch of Judaism where the rabbi and cantor were both women. • Excelled in school. Her mother pushed her hard to succeed. Was first in her class. Her mother died of cancer the night before the high school graduation but she still attended and gave the speech as valedictorian • Attended Cornell University where she majored in Government and was elected to Phi Beta Kappa. Graduated in 1954, as the highest ranking female student, with a BA in Government

4. RUTH BADER GINSBURG: PERSONAL LIFE AND LAW SCHOOL • Met fellow undergraduate Martin (Marty) Ginsburg a month after arriving at Cornell. They married a month after she graduated in 1954. They were married for 56 years until Marty died of cancer in 2010. By all accounts, they had a very strong marriage. Even though he was a well known and successful tax attorney, he took primary responsibility for running the household and raising the children after they both began their careers. They had two children, a daughter and a son born 10 years apart • They moved to Fort Sill, Oklahoma in 1954 when Marty, a reserve Army officer, was called up to active duty. Ruth worked for the Social Security Administration but was demoted when her employer learned she was pregnant. Their daughter Jane, today a professor at Columbia Law School, was born in 1955 • Marty started Harvard Law School in 1955 and Ruth enrolled at Harvard Law School in 1956. She was one of 9 women in a class of over 500. All the entering women were asked by Dean Erwin Griswold, “Why are you at Harvard Law School taking the place of a man?” • While they were students at Harvard, Marty was diagnosed with testicular cancer. Ruth went to his classes and took notes while he received treatment. She took the notes, attended her classes, raised a toddler, and served on the Harvard Law Review • Marty was a year ahead of Ruth and took a job as a tax attorney in New York City. Ruth transferred for her final year to Columbia Law School, serving on the Columbia Law Review and graduating in 1959, magna cum laude, first in her class

5. RUTH BADER GINSBURG: EARLY CAREER • She had an impossible time finding employment in a law firm in New York City despite her stellar credentials. She said she had a “triple whammy,” being a woman, Jewish, and a mother • Supreme Court Justice Felix Frankfurter rejected her as a law clerk even though Harvard Law School Dean Albert Sacks recommended her highly. Frankfurter cited her gender. Judge Edward Palmieri of the United Stated District Court, Southern District of New York, hired her as a law clerk after much persuasion from Columbia Law School professor Gerald Gunther who threatened to never send another law clerk to the Judge if he didn’t take Ginsburg on. She held the position for two years • From 1961 to 1963, Ginsburg was a research associate and then an associate director of the Columbia Law School Project on International Procedure; she learned Swedish to co-author a book on Civil Procedure in Sweden. Much of her views on gender equality were influenced by the time she spent in Sweden researching the book

6. PROFESSOR RUTH BADER GINSBURG: ACADEMIC CAREER • She became a law professor at Rutgers Law School in Camden, New Jersey in 1963. She was told she’d be paid less than her male colleagues because her husband had a well paying job. At the time, she was one of only about 20 female law professors nationwide • She taught Civil Procedure at Rutgers from 1963-72, earning tenure in 1969 • From 1972 to 1980, she taught at Columbia Law School, where she became the first tenured woman professor and co-authored the first law school casebook on sex discrimination

7. RUTH BADER GINSBURG: ADVOCATE FOR THE ACLU • In 1972, Ginsburg co-founded the Women's Rights Project at the American Civil Liberties Union (ACLU) and, in 1973, she became the Project’s general counsel. The Women's Rights Project and related ACLU projects participated in over 300 gender discrimination cases by 1974. As the director of the ACLU's Women's Rights Project, she argued six gender discrimination cases before the Supreme Court between 1973 and 1976, winning five of them. She did all this pro bono while still teaching at Columbia • Rather than asking the court to end all gender discrimination at once, Ginsburg charted a strategic course, taking aim at specific discriminatory statutes and building on each successive victory. She chose plaintiffs carefully, at times picking male plaintiffs to demonstrate that gender discrimination was harmful to both men and women. The laws Ginsburg targeted included those that on the surface appeared beneficial to women, but in fact reinforced the notion that women needed to be dependent on men. Her strategic advocacy extended to word choice, favoring the use of "gender" instead of "sex", after her secretary suggested the word "sex" would serve as a distraction to judges. She attained a reputation as a skilled oral advocate and her work led directly to the end of gender discrimination in many areas of the law

8. RUTH BADER GINSBURG: ADVOCATE FOR THE ACLU • One of the most famous cases she argued before the Supreme Court was Weinberger v. Wiesenfeld(1975), where Ginsburg represented a widower denied survivor benefits under Social Security, which permitted widows but not widowers to collect special benefits while caring for minor children. She argued that the statute discriminated against male survivors of workers by denying them the same protection as their female counterparts. The Court found in favor of Wiesenfeld by 8-1 • Her last case as a lawyer before the Supreme Court was Duren v. Missouri(1979), which challenged the validity of voluntary jury duty for women but mandatory jury duty for men, on the ground that participation in jury duty was a citizen's vital governmental service and therefore should not be optional for women. At the end of Ginsburg's oral argument, then-Associate Justice William Rehnquist asked Ginsburg, "You won't settle for putting Susan B. Anthony on the new dollar, then?" Ginsburg said she considered responding, "We won't settle for tokens", but instead opted not to answer the question • Legal scholars and advocates credit Ginsburg's body of work with making significant legal advances for women under the Equal Protection Clause of the Constitution. Taken together, Ginsburg's legal victories discouraged legislatures from treating women and men differently under the law. She continued to work on the ACLU's Women's Rights Project until her appointment to the Federal Bench in 1980

9. JUDGE RUTH BADER GINSBURG: D.C. CIRCUIT COURT OF APPEALS • Ginsburg was nominated by President Jimmy Carter on April 14, 1980 to a seat on the United States Court of Appeals for the District of Columbia Circuit.She was confirmed by the United States Senate on June 18, 1980, and received her commission later that day. Her service terminated on August 9, 1993, due to her elevation to the United States Supreme Court. During her time as a judge on the D.C. Circuit, Ginsburg often found consensus with her colleagues, including conservatives Robert H. Bork and Antonin Scalia. Her time on the court earned her a reputation as a "cautious jurist" and a moderate

10. JUSTICE RUTH BADER GINSBURG: SUPREME COURT NOMINATION AND CONFIRMATION • President Bill Clinton nominated Judge Ginsburg as an Associate Justice of the Supreme Court on June 14, 1993, to fill the seat vacated by retiring Justice Byron White. Ginsburg was recommended to Clinton by then-U.S. Attorney General Janet Reno after a suggestion by Utah Republican Senator Orrin Hatch. At the time of her nomination, Ginsburg was viewed as a moderate. Clinton was reportedly looking to increase the court's diversity, which Ginsburg did as the first Jewish justice since the 1969 resignation of Justice Abe Fortas, the first-ever female Jewish justice, and the second female justice. The American Bar Association's Standing Committee on the Federal Judiciary rated Ginsburg as "well qualified,“ its highest possible rating for a prospective justice • During her subsequent testimony before the United States Senate Committee on the Judiciary, as part of the confirmation hearings, she refused to answer questions about her view on the constitutionality of some issues such as the death penalty, as it was an issue that she might have to vote on if it came before the court. But, Ginsburg did answer questions about some potentially controversial issues. For instance, she affirmed her belief in a constitutional right to privacy and explained at some length her personal judicial philosophy and thoughts regarding gender equality. Ginsburg was more forthright in discussing her views on topics about which she had previously written. The United States Senate confirmed her by a 96 to 3 vote on August 3, 1993, she received her commission on August 5, 1993 and she took her judicial oath on August 10, 1993

11. JUSTICE RUTH BADER GINSBURG: JUDICIAL PHILOSOPHY • Ginsburg characterizes her performance on the court as a cautious approach to adjudication. She argued in a speech shortly before her nomination to the court that "[m]easured motions seem to me right, in the main, for Constitutional as well as common law adjudication. Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable." Legal scholar Cass Sunstein has characterized Ginsburg as a "rational minimalist", a jurist who seeks to build cautiously on precedent rather than pushing the Constitution towards her own vision

12. JUSTICE RUTH BADER GINSBURG: FINDING HER VOICE • The retirement of Justice Sandra Day O'Connor in 2006 left Ginsburg as the only woman on the court. Linda Greenhouse of The New York Timesreferred to the subsequent 2006–2007 term of the court as "the time when Justice Ruth Bader Ginsburg found her voice, and used it.“ The term also marked the first time in Ginsburg's history with the court where she read multiple dissents from the bench, a tactic employed to signal more intense disagreement with the majority • With the retirement of Justice John Paul Stevens in 2010, Ginsburg became the senior member of what is sometimes referred to as the court's "liberal wing". When the court would split 5–4 along ideological lines and the liberal justices were in the minority, Ginsburg often has the authority to assign authorship of the dissenting opinion because of her seniority. Ginsburg has been a proponent of the liberal dissenters speaking "with one voice" and, where practicable, presenting a unified approach to which all of the dissenting justices can agree

13. JUSTICE RUTH BADER GINSBURG: MAJOR SUPREME COURT WORK (ABORTION) • Ginsburg was in the minority for Gonzales v. Carhart, (2007), a 5–4 decision upholding restrictions on partial birth abortion. In her dissent, Ginsburg opposed the majority's decision to defer to legislative findings that the procedure was not safe for women. Ginsburg focused her ire on the way Congress reached its findings and with the veracity of the findings. Joining the majority for Whole Woman's Health v. Hellerstedt, (2016), a case which struck down parts of a 2013 Texas law regulating abortion providers, Ginsburg also authored a short concurring opinion which was even more critical of the legislation at issue. She asserted the legislation was not aimed at protecting women's health, as Texas had claimed, but rather to impede women's access to abortions

14. JUSTICE RUTH BADER GINSBURG: MAJOR SUPREME COURT WORK (GENDER EQUALITY) • Ginsburg authored the court's opinion in United States v. Virginia, (1996), which struck down the Virginia Military Institute's (VMI) male-only admissions policy as violating the Equal Protection Clause of the Fourteenth Amendment. VMI is a prestigious, state-run, military-inspired institution that did not admit women. For Ginsburg, a state actor such as VMI could not use gender to deny women the opportunity to attend VMI with its unique educational methods. Ginsburg emphasized that the government must show an "exceedingly persuasive justification" to use a classification based on gender • Ginsburg dissented in the Court's decision on Ledbetter v. Goodyear,a case where plaintiff Lilly Ledbetter filed a lawsuit against her employer claiming pay discrimination based on her gender under Title VII of the Civil Rights Act. In a 5–4 decision, the majority interpreted the statute of limitations as starting to run at the time of every pay period, even if a woman did not know she was being paid less than her male colleague until later. Ginsburg found the result absurd, pointing out that women often do not know they are being paid less, and therefore it was unfair to expect them to act at the time of each paycheck. She also called attention to the reluctance women may have in male-dominated fields to making waves by filing lawsuits over small amounts, choosing instead to wait until the disparity accumulates. As part of her dissent, Ginsburg called on Congress to amend Title VII to undo the Court's decision with legislation. Following the election of President Barack Obama in 2008, the Lilly Ledbetter Fair Pay Act, making it easier for employees to win pay discrimination claims, became law. Ginsburg was credited with helping to inspire the law

15. JUSTICE RUTH BADER GINSBURG: MAJOR SUPREME COURT WORK (FIRST AMENDMENT) • In Burwell v. Hobby Lobby Stores (2014) Ginsburg delivered the primary dissent and wrote, "In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. ... Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based opt-outs impose on others, hold no sway, the Court decides, at least when there is a 'less restrictive alternative.' And such an alternative, the Court suggests, there always will be whenever, in lieu of tolling an enterprise claiming a religion-based exemption, the government, i.e., the general public, can pick up the tab.”

16. JUSTICE RUTH BADER GINSBURG: MAJOR SUPREME COURT WORK (FIRST AMENDMENT, CONTINUED) • In Hobby Lobby, Ginsburg challenged the majority's unprecedented view of for-profit religion saying "Until this litigation, no decision of this Court recognized a for-profit corporation's qualification for a religious exemption from a generally applicable law, whether under the Free Exercise Clause or RFRA. The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities... Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community." Responding to the majority's argument that the government should "assume the cost" of contraceptives, Ginsburg said that "the nation's only dedicated source of federal funding for safety net family planning services ..." is not designed to absorb the unmet needs of those already insured. She noted that "a less restrictive alternative" has not been written into law by Congress. Ginsburg warns, "The Court, I fear, has ventured into a minefield.”

17. JUSTICE RUTH BADER GINSBURG: MAJOR SUPREME COURT WORK (VOTING RIGHTS) • In Shelby County v. Holder (2013),a voting rights case involving the use of racial data in the drawing of Congressional districts, Ginsburg wrote a dissenting opinion. The majority held that the formula used for collecting the data was obsolete and, as applied, was not constitutional as violating “one man one vote.” The dissent would have held that Congress had sufficient evidence before it to determine that the coverage formula remained responsive to current needs and, therefore, did not change the law. The dissent acknowledged that discrimination in voting has decreased in the covered jurisdictions since the Voting Rights Act's enactment, but it attributed much of that decrease to the Act itself, noting that "[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

18. JUSTICE RUTH BADER GINSBURG: JEWISH INFLUENCE • The Supreme Court bar formerly inscribed its certificates "in the year of our Lord", which some Orthodox Jews opposed, and asked Ginsburg to object to. She did so, and due to her objection, Supreme Court bar members have since been given other choices of how to inscribe the year on their certificates • In March 2015, Ginsburg and Rabbi Lauren Holtzblatt released "The Heroic and Visionary Women of Passover," an essay highlighting the roles of five key women in the story. • Ginsburg decorates her chambers with an artist's rendering of the Hebrew phrase from Deuteronomy, "Zedek, zedek, tirdof", ("Justice, justice shall you pursue") as a reminder of her heritage and professional responsibility

19. JUSTICE RUTH BADER GINSBURG: HEALTH • Ginsburg has survived three bouts with cancer: colon cancer in 1999; pancreatic cancer in 2009; and lung cancer in 2018 • She had a stent put in a coronary artery in 2014 • She broke three ribs in 2018 • She works out regularly and her personal trainer has written about her workout routine

20. JUSTICE RUTH BADER GINSBURG: FASHION • Following her appointment to the Supreme Court in 1993, Ginsburg deviated from court tradition by wearing a French robe d'avocat, as opposed to the traditional American judicial robe. The French robe differs from the American with its exposed buttons, open sleeves, standing collar, and white rabat. On the left shoulder of the robe are two buttons intended for the fastening of an epitoge, traditionally worn by French lawyers. In later years, Ginsburg would shift from the traditionally uniform white French rabat and begin wearing more varied and fanciful jabots, necklaces, and other forms of neckwear • Ginsburg has a collection of lace jabots from around the world. She stated in 2014 that she has a particular jabot that she wears when issuing her dissents (black with gold embroidery and faceted stones) as well as another she wears when issuing majority opinions (crocheted yellow and cream with crystals), which was a gift from her law clerks

21. JUSTICE RUTH BADER GINSBURG: FASHION • Below is a portrait of the four women Justices. You see that Justice Ginsburg’s robe is different from the others.

22. JUSTICE RUTH BADER GINSBURG: POP ICON • In her spare time, Ginsburg has appeared in several operas in non-speaking supernumerary roles such as Die Fledermaus (2003) and Ariadne auf Naxos (1994 with Scalia, and 2009), and spoke lines penned by herself in The Daughter of the Regiment (2016). • Ginsburg has been referred to as a "pop culture icon". Ginsburg's profile began to rise after O'Connor's retirement in 2006 left Ginsburg as the only serving female Justice. Her increasingly fiery dissents particularly in Shelby County v. Holder (2013) led to the creation of the Notorious R.B.G. Tumblr and Internet meme comparing the Justice to rapper The Notorious B.I.G. The creator of the Notorious R.B.G. Tumblr, then-law student Shana Knizhnik, teamed up with MSNBC reporter Irin Carmon to turn the blog into a book titled Notorious RBG: The Life and Times of Ruth Bader Ginsburg. Released in October 2015, the book became a New York Times bestseller. Additionally, Ginsburg's pop culture appeal has inspired nail art, Halloween costumes, a bobblehead doll, tattoos, t-shirts, coffee mugs, and a children's book among other things. She appears in both a comic opera (Scalia/Ginsburg)and a workout book. Ginsburg has admitted to having a "large supply" of Notorious R.B.G. t-shirts, which she distributes as gifts • Ginsburg will appear as LEGO character in the upcoming LEGO MOVIE 2

23. STEPHEN GERALD BREYER (1938-): THE PROFESSOR AND JUDGE

24. STEPHEN BREYER: THE EARLY YEARS • Born in San Francisco to Irving and Anne Breyer. His paternal great-grandfather emigrated from Rumania. Raised in a middle class family in San Francisco. He and his younger brother, a retired Federal District Court Judge, were Eagle Scouts • Received a B.A. in Philosophy from Stanford in 1960 and attended Oxford, where he also studied Philosophy, as a Marshall Scholar, and an LLB from Harvard Law School in 1964. He is fluent in French • In 1967, he married Joanna Freda Hare, a psychologist and daughter of John Hare, 1st Viscount of Blankenham. They met while he was at Oxford. They have three children – two sons and a daughter, who is an Episcopal priest

25. STEPHEN BREYER: EARLY CAREER • Breyer was a law clerk to Justice Arthur Goldberg in the 1964-65 term. Worked briefly as a fact checker for the Warren Commission. He was a special assistant to the United States Assistant Attorney General for Antitrust from 1965 to 1967 and an assistant special prosecutor on the Watergate Special Prosecution Force in 1973. Breyer was a special counsel to the U.S. Senate Committee on the Judiciary from 1974 to 1975 and served as chief counsel of the committee from 1979 to 1980. He worked closely with the chairman of the committee, Senator Edward M. Kennedy, to pass the Airline Deregulation Act that closed the Civil Aeronautics Board • Breyer was a lecturer, assistant professor, and full tenured professor at Harvard Law School starting in 1967. He taught there until 1994, He also served as a professor at Harvard's Kennedy School of Government from 1977 to 1980. At Harvard, Breyer was known as a leading expert on administrative law. While there, he wrote two highly influential books on deregulation: Breaking the Vicious Circle: Toward Effective Risk Regulation and Regulation and Its Reform. • He could often be seen around Harvard riding his bicycle to work

26. JUDGE STEPHEN BREYER: FIRST CIRCUIT COURT OF APPEALS • From 1980 to 1994, Breyer was a judge on the United States Court of Appeals for the First Circuit; he was the court's Chief Judge from 1990 to 1994. In the last days of President Jimmy Carter's administration, on November 13, 1980, Carter nominated Breyer to the First Circuit, to a new seat and the United States Senate confirmed him on December 9, 1980, by an 80–10 vote. He received his commission on December 10, 1980. He served as a member of the Judicial Conference of the United States between 1990 and 1994 and the United States Sentencing Commission between 1985 and 1989. On the Sentencing Commission, Breyer played a key role in reforming federal criminal sentencing procedures, producing the Federal Sentencing Guidelines, which were formulated to increase uniformity in sentencing. His service on the First Circuit terminated on August 2, 1994, due to his elevation to the Supreme Court

27. JUSTICE STEPHEN BREYER: SUPREME COURT NOMINATION AND CONFIRMATION • In 1993, President Bill Clinton considered Breyer for the seat vacated by Byron White that ultimately went to Justice Ruth Bader Ginsburg. Breyer's own appointment came shortly thereafter, however, following the retirement of Harry Blackmun in 1994, when Clinton nominated Breyer as an Associate Justice of the Supreme Court on May 17, 1994. Breyer was confirmed by the Senate on July 29, 1994, by an 87 to 9 vote, and received his commission on August 3. He was the second-longest-serving junior justice in the history of the Court, close to surpassing the record set by Justice Joseph Story of 4,228 days (from February 3, 1812, to September 1, 1823); Breyer fell 29 days short of tying this record, which he would have reached on March 1, 2006, had Justice Samuel Alito not joined the Court on January 31, 2006

28. JUSTICE STEPHEN BREYER: JUDICIAL PHILOSOPHY • Breyer's pragmatic approach to the law "will tend to make the law more sensible"; according to Cass Sunstein, Breyer's "attack on originalism is powerful and convincing". In 2006, Breyer said that in assessing a law's constitutionality, while some of his colleagues "emphasize language, a more literal reading of the [Constitution's] text, history and tradition," he looks more closely to the "purpose and consequences“ • In describing his interpretive philosophy, Breyer has sometimes noted his use of six interpretive tools: text, history, tradition, precedent, the purpose of a statute, and the consequences of competing interpretations. He has noted that only the last two differentiate him from textualists such as Scalia. Breyer argues that these sources are necessary, however, and in the former case (purpose), can in fact provide greater objectivity in legal interpretation than looking merely at what is often ambiguous statutory text. With the latter (consequences), Breyer argues that considering the impact of legal interpretations is a further way of ensuring consistency with a law's intended purpose

29. JUSTICE STEPHEN BREYER: AUTHOR • Breyer expounded his judicial philosophy in 2005 in Active Liberty: Interpreting Our Democratic Constitution. In it, Breyer urges judges to interpret legal provisions (of the Constitution or of statutes) in light of the purpose of the text and how well the consequences of specific rulings fit those purposes. The book is considered a response to the 1997 book A Matter of Interpretation, in which Antonin Scalia emphasized adherence to the original meaning of the text alone • In 2010, Breyer published a second book, Making Our Democracy Work: A Judge's View. There, Breyer argued that judges have six tools they can use to determine a legal provision's proper meaning: (1) its text; (2) its historical context; (3) precedent; (4) tradition; (5) its purpose; and (6) the consequences of potential interpretations. Textualists, like Scalia, only feel comfortable using the first four of these tools; while pragmatists, like Breyer, believe that "purpose" and "consequences" are particularly important interpretative tools

30. JUSTICE STEPEHN BREYER: AUTHOR (CONT.) • Breyer cites several watershed moments in Supreme Court history to show why the consequences of a particular ruling should always be in a judge's mind. He notes that President Jackson ignored the Court's ruling in Worcester v. Georgia, which led to the Trail of Tears and severely weakened the Court's authority. He also cites the Dred Scott decision, an important precursor to the American Civil War. When the Court ignores the consequences of its decisions, Breyer argues, it can lead to devastating and destabilizing outcomes

31. JUSTICE STEPHEN BREYER: MAJOR SUPREME COURT WORK (HELLER CASE) • In an interview on Fox News Sunday on December 12, 2010, Breyer said that based on the values and the historical record, the Founding Fathers of the United States never intended guns to go unregulated and that history supports his and the other dissenters' views in District of Columbia v. Heller (2008). He summarized: “We're acting as judges. If we're going to decide everything on the basis of history — by the way, what is the scope of the right to keep and bear arms? Machine guns? Torpedoes? Handguns? Are you a sportsman? Do you like to shoot pistols at targets? Well, get on the subway and go to Maryland. There is no problem, I don't think, for anyone who really wants to have a gun.”

32. JUSTICE STEPHEN BREYER: MAJOR SUPREME COURT WORK (HELLER CONT.) • Justice Breyer filed a separate dissenting opinion in Heller (Justice Stevens wrote the main dissent), joined by the same dissenting Justices. The Breyer dissent concludes, "there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas." It proposes that firearms laws be reviewed by balancing the interests (i.e., “interest-balancing' approach") of Second Amendment protections against the government's compelling interest of preventing crime • The Breyer dissent also objected to the "common use" distinction used by the majority to distinguish handguns from machineguns: "But what sense does this approach make? According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machine guns, and people buy machine guns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machine gun...There is no basis for believing that the Framers intended such circular reasoning.”

33. ELENA KAGAN (1960-): THE OVERACHIEVER

34. ELENA KAGAN: THE EARLY YEARS • Born in Manhattan to Robert and Gloria Kagan, a lawyer and High school teacher. One of three children. Her grandparents were Russian Jewish immigrants • Lived on Upper West Side and family attended Lincoln Square Synagogue, an Orthodox synagogue • She had strong opinions about what a bat mitzvah should be like, which didn't parallel the wishes of the rabbi at her synagogue. She and the rabbi negotiated a satisfactory solution to both. Kagan's rabbi, Shlomo Riskin, had never performed a ritual bat mitzvah before. “She felt very strongly that there should be ritual bat mitzvah in the synagogue, no less important than the ritual bar mitzvah. This was really the first formal bat mitzvah we had," said Riskin. Kagan asked to read from the Torah on a Saturday morning but ultimately read from the Book of Ruth on a Friday night. She negotiated this deal on her own when she was 12 years old. As an adult, she identifies with Conservative Judaism

35. ELENA KAGAN: EDUCATION • Graduated from Hunter College High School, where her mother taught, in 1977. In her Hunter College High School yearbook, she is pictured in a judge's robe and holding a gavel. Next to her photo is a quote from former Supreme Court Justice Felix Frankfurter: "Government is itself an art, one of the subtlest of arts.” She was President of the student body and an outstanding student • Attended Princeton University and earned a BA summa cum laude in history in 1981

36. ELENA KAGAN: EDUCATION (CONT.) At Princeton she was Chair of the Editorial Board of the Daily Princetonian. Along with eight other students, Kagan penned the "Declaration of the Campaign for a Democratic University". It called for "a fundamental restructuring of university governance" and condemned Princeton's administration for making decisions "behind closed doors“ In 1980, Kagan received Princeton's Daniel M. Sachs Class of 1960 Graduating Scholarship, one of the highest general awards conferred by the University. This enabled her to study at Worcester College, Oxford. As part of her graduation requirement, Kagan wrote a thesis on "The Development and Erosion of the American Exclusionary Rule: A Study in Judicial Method". This thesis presented a critical look at the exclusionary rule and its evolution on the Supreme Court—in particular the Warren Court. She earned a Master of Philosophy in Politics at Oxford in 1983

37. ELENA KAGAN: LAW SCHOOL AND EARLY LEGAL CAREER • She entered Harvard Law School in 1983. Her adjustment to the atmosphere of Harvard was rockyand she received the worst grades of her entire law school career in her first semester. Kagan would go on to earn an A grade in 17 of the 21 courses she took at Harvard • She received a Juris Doctor, magna cum laude, at Harvard Law School in 1986, where she was supervisory editor of the Harvard Law Review • In 1987, Kagan was a law clerk for Judge Abner J. Mikva of the United States Court of Appeals for the District of Columbia Circuit. She emerged as one of Mikva's favorite clerks; he called Kagan "the pick of the litter.” She also clerked for Justice Thurgood Marshall of the U.S. Supreme Court in 1988 ending the clerkship at the end of the year. His nickname for her was “shorty” because she was 5 foot three inches tall • Kagan worked as an associate in Washington D.C. for Williams and Connolly for three years. She worked on a number of media and First Amendment matters

38. ELENA KAGAN: ACADEMIC CAREER (ROUND 1) • Kagan joined the faculty of the University of Chicago Law School as an assistant professor in 1991. It was during her time at the University of Chicago Law School that Kagan first met Barack Obama who became a lecturer at the school in 1992. While on the faculty, Kagan published a law review article on the regulation of First Amendment hate speech in the wake of the Supreme Court's ruling in R.A.V. v. City of St. Paul. The article discussed the significance of governmental motive in regulating speech. In the article, which became highly influential, Kagan argued that the Supreme Court should examine governmental motives when deciding First Amendment cases and analyzed historic draft-card burning and flag burning cases in light of free speech arguments • She received tenure from the University of Chicago Law School in 1995

39. ELANA KAGAN: GOVERNMENT SERVICE (ROUND 1) • Kagan served as Associate White House Counsel for Bill Clinton from 1995–1996, when her mentor Judge Mikva served as White House Counsel. Kagan worked on controversial issues that plagued the Clinton White House such as the Whitewater controversy, White House travel office controversy, and Clinton v. Jones. From 1997–1999 she worked as Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council. Kagan worked on topics like budget appropriations, campaign finance reform, and social welfare issues. Kagan co-authored a 1997 memo urging Clinton to support a ban on late-term abortion • On June 17, 1999, Clinton nominated Kagan to the U.S. Court of Appeals for the District of Columbia Circuit. The Senate Judiciary Committee's Republican Chairman Orrin Hatch scheduled no hearing, effectively ending her nomination. When Clinton's term ended, her nomination to the D.C. Circuit Court lapsed

40. ELENA KAGAN: ACADEMIC CAREER (ROUND 2) • After her service in the White House and her lapsed judicial nomination, Kagan returned to academia in 1999. Kagan quickly found a position as a visiting professor at Harvard Law School. While there, she authored a law review article on United States administrative law, including the role of aiding the President of the United States in formulating and influencing federal administrative and regulatory law, which was honored as the year's top scholarly article by the American Bar Association's Section on Administrative Law and Regulatory Practice. • In 2001, Kagan was named a full professor at Harvard Law and in 2003 was named Dean of the Law School. The focus of her tenure as Dean was on improving student satisfaction. Efforts included constructing new facilities and reforming the first-year curriculum as well as aesthetic changes and creature comforts, such as free morning coffee. She has been credited for employing a consensus-building leadership style, which surmounted the school's previous ideological discord

41. ELENA KAGA: ACADEMIC CAREER (ROUND 2 CONT.) • In her capacity as dean, Kagan inherited a $400 million capital campaign, "Setting the Standard,” in 2003. It ended in 2008 with a record-breaking $476 million raised, 19% more than the original goal. Kagan made a number of prominent new hires, increasing the size of the faculty considerably • Kagan transformed Harvard Law School from a harsh environment for students to one that was much more student-centric • By early 2007, Kagan was a finalist for the presidency of Harvard University as a whole after Lawrence Summers' resignation the previous year but lost to Drew Gilpin Faust. She was reportedly disappointed not to be chosen, and supportive law school students threw her a party to express their appreciation for her leadership

42. ELENA KAGAN: GOVERNMENT SERVICE (PART 2) • On January 5, 2009, President-elect Barack Obama announced he would nominate Kagan to be Solicitor General. Before this appointment she had never argued a case before any court • The two main issues senators had with Kagan during confirmation hearings were: 1. Would Kagan defend statutes that she personally opposed? and 2. Was she qualified to hold the position of solicitor general given her lack of courtroom experience? Kagan testified she would defend laws"if there is any reasonable basis to do so". Kagan was confirmed by the U.S. Senate on March 19, 2009, by a vote of 61 to 31, becoming the first woman to hold the position. Upon taking office, Kagan pledged to defend any statute as long as there is a colorable argument to be made, even though she might not personally agree with the policy she was obligated to defend. As Solicitor General, Kagan's job was to act as the lawyer for the United States

43. ELENA KAGAN: SOLICITOR GENERAL • Kagan made her first appearance before the Supreme Court on September 9, 2009, one month before the typical start of a new term in October, in the re-argument of Citizens United v. Federal Election Commission(2010). During argument, Kagan asked the Supreme Court to uphold a 1990 precedent that the government could restrict corporations from using their treasuries to campaign for or against political candidates, or in the alternative, for the Court to keep its ruling narrowly focused on corporations that resembled Citizens United instead of reconsidering prior cases which allowed for restrictions on some corporate campaign finance. The Supreme Court reversed laws on how much corporations could spend on elections, a major defeat for the Obama Administration

44. ELENA KAGAN: SUPREME COURT NOMINATION • On May 10, 2010, President Obama nominated Kagan to the Supreme Court to fill the vacancy left by Justice John Paul Stevens. The deans of over one-third of the country's law schools, sixty-nine people in total, endorsed Kagan's nomination in an open letter in early June. It lauded what it considered her coalition-building skills and "understanding of both doctrine and policy" as well as her written record of legal analysis. The New York Times noted she "has supported assertions of executive power". Her view of vast executive power caused some commentators to fear she would reverse the current liberal majority on the Supreme Court in favor of protecting civil liberties if she were to replace Stevens

45. ELENA KAGAN: SUPREME COURT CONFIRMATION PROCESS • The confirmation hearings began June 28, 2010. As the hearings began, Kagan was heavily expected to be confirmed, with Republican Senator John Cornyn calling Kagan "justice-to-be". During the hearings, Kagan demonstrated a deep knowledge of Supreme Court cases, expanding upon cases Senators mentioned in their questions to her, and doing so without taking notes. Like many prior nominees, including Chief Justice John Roberts, Kagan declined to answer whether she thought particular cases were rightly decided or how she would rule on particular issues. Democratic Senator Arlen Specter criticized such evasiveness. For Specter, that evasiveness obscured the way justices actually ruled once on the Court, and he noted that Kagan published an article in the Chicago Law Review in 1995 in which she criticized the evasiveness she came to practice. Republican Senators criticized Kagan's background as more political than judicial. Kagan responded to such criticism with promises she would be impartial and fair. On August 5, 2010, the full Senate confirmed her nomination by a vote of 63–37. The voting was largely along party lines, with five Republicans (Richard Lugar, Judd Gregg, Lindsey Graham, Susan Collins, and Olympia Snowe) supporting her and one Democrat (Ben Nelson) opposing

46. JUSTICE ELENA KAGAN: JUDICIAL STYLE AND PHILOSOPHY • Kagan is the first justice appointed without any prior experience as a judge since William Rehnquist in 1972. She is the fourth female justice in the Court's history (and, for the first time, part of a Court with three female justices) and the eighth Jewish justice • In her first term on the Court, Kagan did not write any separate opinions, and wrote the fewest opinions of any Justice on the Court. She only wrote majority opinions or dissents that more senior justices assigned to her, and in which she and a group of justices agreed upon a rationale for deciding the case. This tendency to write for a group rather than herself made it difficult to determine her own unique nuanced views or where she might lean in future cases.She wrote the fewest opinions for the terms from 2011 through 2014, tying with Kennedy for the 2011 and 2013 terms • Having acted as Solicitor General before her nomination to the Supreme Court, Kagan recused herself from many cases to avoid conflicts of interests during her first year on the court. In her first term, she recused herself from 28 out of the 78 cases heard • Ideologically, Kagan is part of the Supreme Court's liberal wing: Kagan voted with the liberal block to King v. Burwell(2015), finding subsidies and the individual mandate in Obamacare were Constitutional, and in Obergefell v. Hodges(2015), which legalized same sex-marriage in all 50 states

47. JUSTICE ELENA KAGAN: MAJOR SUPREME COURT WORK • Kagan wrote the majority opinion in Kimble v. Marvel Entertainment, LLC. (2015). In the 6–3 decision in favor of Marvel, Kagan held that a patentee cannot receive royalties after the patent has expired. Kagan's opinion included several references to Spider-Man • Kagan wrote a dissent in Town of Greece v. Galloway(2014) that argued that a town's prayer at a town council meeting failed to treat all Americans the same no matter what religion they practice. Greece involved a town in New York inviting chaplains, for several years all Christian, to give a prayer before town council meetings. Unlike Marsh v. Chambers(1983), where the Supreme Court had upheld a state legislature opening with a prayer, Kagan noted the board in Greece was a forum for ordinary citizens. For Kagan, the use of prayer showed a preference for a particular religion and violated the First Amendment Rights of Americans interacting with their government

48. ELENA KAGAN: MAJOR SUPREME COURT WORK (CONT.) • Kagan dissented in Luis v. United States(2016), where the five justice majority held that the freezing of untainted assets, those not traced back to criminal activity, pre-trial was a violation of a defendant's Sixth Amendment right to counsel where those assets were needed to retain counsel of the defendant's choosing. The prosecutors asked a judge to freeze $2 million of Luis' assets, which the defendant said she needed to pay legal bills. A prior Supreme Court case, United States v. Monsanto, 491 U.S. 600 (1989), held that a court could freeze a defendant's assets, including funds obtained through the alleged sale of drugs, pretrial even where those assets were being used to hire an attorney. The majority sought to distinguish their holding in Luis from Monsanto based upon the nature of the funds being frozen pretrial • Luis' funds were not directly linked to her crime whereas Mosanto's funds were. Justice Kennedy dissented in Luis because he did not think criminal defendants should be treated differently based on how quickly they spent their illegal proceeds; he did not think it was right to spare the criminal defendant who spends their ill-gotten gains quickly while punishing another criminal defendant who spends legal money first. Kagan agreed with Kennedy that the court's decision created inequity and drew an arbitrary distinction, however, Kagan went further to opine that Monsanto may have been wrongfully decided. Kagan suggested she would be willing to overturn such precedent in the future, but declined to do so in the case at bar because Luis had not sought that relief

49. GINSBURG, BREYER AND KAGAN: A PERSONAL ASSESSMENT • It is too soon to discuss their legacies since they are all incumbents and they are still evolving • None are as liberal and activist as the media portrays them • They all try to build consensus • Their Jewishness is now not any particular issue

50. YOUR FEEDBACK • I welcome your feedback on this class, Jewish Justices of the United States Supreme Court • Feedback is appreciated if you attended any of the sessions • Please e-mail me with your feedback to: • djkarlin@rcn.com A big THANK YOU to all who attended!