Supreme Court Nominee Elena Kagan: Role in the Solomon Amendment Litigation

Jody Feder
Legislative Attorney

On May 10, 2010, President Obama nominated Elena Kagan to replace Justice John Paul Stevens as a member of the Supreme Court. Unlike the vast majority of other nominees to the Supreme Court, Kagan, a former dean at Harvard Law School (HLS) and current Solicitor General, has not been a member of the judiciary and therefore has never issued the judicial opinions that are a traditional source of insight into a nominee's legal views. Nevertheless, Kagan has written, contributed to, or otherwise signaled agreement with a wide array of legal documents during the course of her career, and some understanding of her views may be gleaned from these documents. 

During her tenure as dean of HLS, Kagan, in conjunction with 39of her faculty colleagues at the law school, signed an amicus curiae brief in support of the Forum for Academic and Institutional Rights (FAIR). At the time, FAIR, which consisted of a consortium of law schools and faculty members, was in the process of challenging the constitutionality of the Solomon Amendment, a federal law that requires colleges and universities that receive federal funds to give military recruiters the same access to students and campuses that is provided to other employers. The brief signed by Kagan and her colleagues offered a statutory argument and did not address broader constitutional arguments. Like many law schools and other academic institutions, HLS maintains a nondiscrimination policy that requires any employer that conducts on-campus recruiting to sign a document stating that it does not discriminate on various grounds, including "race, color, creed, national or ethnic origin, age, sex, gender identity, sexual orientation, marital or parental status, disability, source of income, or status as a veteran." HLS, along with many other institutions of higher education, had sought to bar military recruiters from its campus in response to the military's "Don't Ask, Don't Tell" (DADT) policy, which, with certain exceptions, requires the discharge of members of the armed services who engage in specified types of homosexual conduct. Ultimately, the Supreme Court upheld the constitutionality of the Solomon Amendment in the 2006 case Rumsfeld v. Forum for Academic and Institutional Rights, Inc.


Date of Report:May 21, 2010
Number of Pages: 9
Order Number: R41248
Price: $29.95

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