Supreme Odds: How Will Justice Elena Kagan Vote on Marriage Equality?

kagan93994Like former Justice (and liberal lion) David Souter, Justice Elena Kagan joined the high court in her early fifties as a never-married legal phenomenon with a somewhat opaque personal life. Media outlets made note of her single status. Some ran a photo of Kagan sporting short hair, an oxford shirt, and a fundamentally correct batter’s stance in a softball game.

While Kagan had not publicly identified with any sexual orientation, a CBS News website blog briefly reported that, if confirmed to the court, Kagan would be the “first openly gay justice.” The White House moved quickly to say the report was “inaccurate,” some friends stepped forward to say she’s straight, and CBS took the posting down.

Her confirmation hearing was particularly testy because Republicans punished her for siding with equality while Harvard Law School dean, where she opposed the military’s ban on gay service men and women and enforced the school’s policy banning recruiters who discriminate. There was also a generalized fear among right-wing groups that, gay or not, Kagan was pro-gay enough to reverse DOMA.

Kagan still hasn’t publicly identified with one orientation or another, but she does appear to forceful enough to take down DOMA.

Even before casting a vote on the marriage cases, the court’s newest member had an impact. During her brief stint as solicitor general, she had some conversations with Department of Justice officials about the two DOMA cases out of Massachusetts. In fact, it is possible that the Supreme Court took the DOMA case out of New York because taking the Massachusetts cases might have forced Kagan to recuse herself, setting the stage for a four to four tie on the issue.

Here’s what the odds look like, statistically speaking, for Kagan’s votes, as well as some other factors to weigh:

Percent voted pro-gay (one case): 0

Percent voted with liberal wing: 93

Odds for two pro-gay votes: 7 to 1

Appointed by: President Barack Obama

Age: 53

Religion: Jewish

Notable case: Kagan had no experience as a judge before joining the court in January 2011 (President Clinton had nominated her for a federal appeals court seat in D.C. in 1999). The then Republican-controlled Senate at the time refused to provide her a confirmation hearing, killing the nomination.

Interesting factoids: Kagan learned how to hunt (and operate firearms) from one of the court’s most conservative icons, Antonin Scalia. According to various news reports, she’s taken down some fowl and an antelope, traveling to Wyoming with Scalia to do so last year.

Notable remark during Prop 8 argument: Kagan tried to pin down Yes on 8 attorney Charles Cooper for an explanation of how marriage of same-sex couples harms male-female couples: “What harm you see happening and when and how and what harm to the institution of marriage or to opposite-sex couples–how does this cause and effect work?”

Notable remark during DOMA argument: During oral arguments on the DOMA case, U.S. v. Windsor, Kagan delivered a blow to attorney Paul Clement’s claim that Congress had no animus against gay people in devising the law. “I’m going to quote from the House Report here,” said Kagan. “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.”

Lisa Keen, co-author of Strangers to the Law: Gay People on Trial, will be posting nearly daily on legal matters leading up to and beyond the Supreme Court decision. Her coverage on this and other issues is also available at