Justice Kagan on the First Amendment

Justice Elena Kagan has served on the U.S. Supreme Court since 2009. In her previous career as an academic, she wrote powerful First Amendment scholarship.  She participated in First Amendment advocacy as U.S. solicitor general.   During her time on the High Court, she has penned some notable First Amendment opinions – usually in dissent.

Here are five of her more memorable passages in First Amendment opinions:

“When the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another. And that means that even in a partly legislative body, they should not confront government-sponsored worship that divides them along religious lines.”

Justice Kagan penned this memorable passage near the end of her dissenting opinion in Town of Greece v. Galloway (2014), the Supreme Court’s last pure Establishment Clause case. By a 5-4 vote, the Court upheld a New York town’s opening of town hall meetings with a prayer. Justice Kagan dissented, believing that the town’s practice devolved into favoring majoritarian religions.


“Today’s decision devastates taxpayer standing in Establishment Clause cases. The government, after all, often uses tax expenditures to subsidize favored persons and activities.”

Justice Kagan spoke passionately about the Establishment Clause in another dissenting opinion, this one in Arizona Christian School Tuition Organization v. Winn (2011). A sharply divided Court ruled that a group of Arizona taxpayers lacked standing to challenge the law that allowed tax credits for contributions to school tuition organizations.   Justice Kagan warned that the majority’s decision will shield the government from important Establishment Clause challenges.

“The First Amendment’s core purpose is to foster a healthy, vibrant political system full of robust discussion and debate.”

Justice Kagan wrote this in her dissenting opinion in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011). The decision involved the constitutionality of Arizona’s Citizens’ Clean Election Act, a law designed to provide public financing for campaign financing.   The majority of the Court determined the law imposed a substantial burden on privately funded candidates. Kagan viewed the law differently, focusing on what she termed the larger First Amendment purpose of creating a political system free from the corruptive influence of money.

“We can administer our content-regulation doctrine with a dose of common sense, so as to leave standing laws that in no way implicate its intended function.”

Justice Kagan authored this statement in her concurring opinion in the sign decision, Reed v. Town of Gilbert (2015). In that decision, the Court unanimously invalidated an Arizona town’s ordinance that imposed content distinctions between different types of signs.   The main opinion in the case emphasized that any law distinguishing between types or content of speech must be subjected to the highest form of judicial review known as strict scrutiny. Justice Kagan wrote separately, believing that the majority overstepped the cause in its advance of content discrimination.

“It is not altogether easy to understand why the majority thinks what it thinks: Today’s opinion takes the tack of throwing everything against the wall in the hope that something might stick. A vain hope, as it turns out.”

Justice Kagan is not averse to strong language that criticizes starkly an opposing opinion and its reasoning. The above-passage reflects her disagreement with her colleagues in the majority in Harris v. Quinn (2014). The case involved an Illinois law requiring personal care providers, who are not union members, to contribute monies to the union.   The Court’s primary precedent in this area, Abood v. Detroit Bd. of Education (1977) generally allowed such agency-shop regulations but held that non-union members could not be forced to pay for political or ideological activities not related to the union. The majority criticized Abood and distinguished it. Justice Kagan in her dissenting opinion felt the majority was grasping at straws in trying to distinguish the force of Abood.

  • David L. Hudson, Jr. is a First Amendment expert who has written extensively about the U.S. Supreme Court, including The Handy Supreme Court Answer Book (Visible Ink Press, 2008) and The Rehnquist Court: Understanding Its Impact and Legacy (Praeger, 2007).

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