Could the Next Supreme Court Justice Be a Lesbian? Would It Matter?Elena Kagan

By Jennifer Vanesco

Editor’s Note: This column was originally written before President Obama announced his selection of Solicitor General Elena Kagan to serve on the Supreme Court and has been altered slightly now that the decision has been announced.

Suddenly, it seems possible that the next Supreme Court Justice might be a lesbian.


Solicitor General Elena Kagan is not openly gay at the moment – which of course may mean she’s not gay at all. But persistent rumors, an absence of denial, and some assurances from people I trust make me think that yeah, she probably is.

Kagan is a good choice. Though she hasn’t always won the love of people who worked for her, she is known for reaching out (and hiring) more conservative faculty and for diplomatically increasing the range of viewpoints when she served as Dean of Harvard Law School.

Diplomacy is good – and undervalued – on the Supreme Court. A liberal position on a case helps no one if a justice can’t get four other justices to side with her.

The Wall Street Journal is already warning that conservatives are against her, because she spoke out against the Solomon Amendment, which forbid federal funds to be distributed to law schools (like Harvard) that did not allow the military to recruit on campus because of it’s discriminatory policies.

The idea that she herself may be a lesbian – and the conservative stand against that – is buried in the subtext.Elena Kagan

Would it matter if the next Supreme Court Justice was a lesbian?

Well – yes and no.

No, because we all know that our sexual orientation doesn’t dictate how we feel about any issue. Some of us are Democrats, some Republicans – and I bet some of us are even Tea Partiers. We fall on different sides on hate crimes, military service and even gay marriage.

Her record as a Dean and a professor are more indicative of her liberal leanings than is the (possible) fact of her lesbianism. Though, interestingly, because she hasn’t served as a judge or a legislator, her on-the-record views of most issues that might come up before the Court is non-existent.

But yes, in terms of visibility and representation, it would matter, especially (and perhaps only if) she came out. Having an open lesbian serve on the Supreme Court would mean that young gays and lesbians would have a significant role model and would solidify our place as a minority that deserves representation in our political system.

Perhaps more importantly, though, we could be secure in knowing that there was at least one justice who started with the baseline understanding that gays and lesbians are fully human and should be treated like the full citizens we are.

It also is likely that having her as a close colleague will gently shift the perspective of even the most conservative members of the court (Does Antonin Scalia have any close gay friends? He may, but I think it’s unlikely) and make them less afraid of the lavender menace.

I wonder, too, if lawyers who come before the Supreme Court will argue differently. Most cases are not gay cases, of course, but a few important ones – marriage, military – are likely to come up in the next few years, and it would be interesting to see if the lawyers for the anti-gay side modify their arguments to make them more palatable to a gay justice.

For example, I imagine that there would be no labeling gay people as being bad for children, or of gayness being immoral.

But all of that is speculation. In the meantime, we can hope.

A lesbian on the Supreme Court. Twenty-five years ago, who dreamed that might happen?

Jennifer Vanasco is an award-winning, syndicated columnist. Email her at This e-mail address is being protected from spambots. You need JavaScript enabled to view it ; Follow her at


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