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Is it OK for a Supreme Court justice to accept bagels and lox from her high school friends?

Elena Kagan had concerns about a Russ & Daughters gift basket. Meanwhile, Clarence Thomas accepted favors reportedly worth millions

A group of women who went to high school with Supreme Court Justice Elena Kagan wanted to send her bagels and lox from Russ & Daughters, the legendary deli on the Lower East Side. But they scrapped the plan after Kagan expressed concerns about the court’s ethics rules for reporting gifts.

The idea for the gift originated in a Facebook group for women who attended Hunter College High School in Manhattan in the 1970s. (Kagan was in the class of ’77.) 

“I somewhat tongue-in-cheek said, ‘I feel so badly for her, it must be so lonely and difficult, we should send her a care package,’” recalled Ann Starer, Hunter class of ’75. 

The idea of sending the appetizing spread was proposed in February 2021 and abandoned soon after. But Kagan’s ethical concerns about accepting bagels and lox from her high school pals are newly relevant in contrast with the scandal surrounding Justice Clarence Thomas, who failed to disclose luxury vacations and other gifts from billionaire Republican donor Harlan Crow. 

The writer Sarah Schulman, who also went to Hunter, posted on Facebook on May 6 that the care package for Kagan was envisioned “as a sign of support for the nightmare of having to go to work with Kavanaugh and Amy Coney Barrett and Neil Gorsuch every day. She turned it down because her ethical standard is to not accept any gifts. I mean, she said no to lox and bagels!”

Compare that to Thomas, Schulman added, with “his real estate, fancy travel and cold hard cash. Lox!”

Not without the babka!

Kagan is the eighth Jewish justice in the high court’s history, and currently its only Jewish member. During her 2010 Senate confirmation hearings, Sen. Lindsey Graham, a South Carolina Republican, asked where she was on Christmas, and she responded: “Like all Jews, I was probably at a Chinese restaurant.”

Disclosure: I was in Kagan’s graduating class at Hunter College High, but I did not get involved in the gift-basket project.

Schulman, a novelist, playwright, gay activist and historian, was one of several dozen Hunter alumnae who chipped in $10 apiece toward the proposed order — which also was meant to include babka. (“I was never sending a Russ and Daughters gift basket without the babka!” Starer said.) A few women also sent personal tchotchkes to pass along to Kagan, Starer said — including a bag of chocolates and a handmade work of crochet. The linguist Deborah Tannen, who graduated from Hunter in 1962, sent an autographed copy of her memoir.

Before shipping anything, though, Starer got in touch with Kagan because she “didn’t want to send it without having her OK.” Once Kagan expressed concerns that the gifts might pose issues under the Supreme Court’s rules on gifts and disclosures, Starer decided against following through with the package. The money and tchotchkes were returned to the contributors.

“It was creating more stress for her than it was worth,” Starer said. Although Kagan “was incredibly touched, she was definitely not comfortable with it.” 

“Elena was always a very solid, trustworthy person,” Schulman, a professor at Northwestern University, said by phone. “She was the president of student government at Hunter, and just a very normal Jewish girl from Manhattan. And we were all very proud of her, but very concerned about her having to be on the front lines with these scoundrels. We thought it would be a sign of support to send her some lox, but she was too ethical to take the lox.” 

Questions about Thomas

Kagan’s reluctance to accept the small gifts from her high school friends left Starer with even more questions about Thomas. “There are guidelines about reporting; how could he have gotten this wrong?” Starer said. 

The Washington Post has valued Crow’s gifts, favors and transactions with Thomas at being worth millions of dollars, including Crow purchasing Thomas’ mother’s home and paying private school tuition for Thomas’ nephew.

Starer added that Kagan, who would have received a comparatively small gift, told her in their 2021 email exchanges: “I have to take these ethics and reporting considerations very seriously.”

And unlike the women who’ve known Kagan since she was a teenager, Crow did not know Thomas before his Supreme Court appointment. Crow has also come under scrutiny for his collection of Nazi-related memorabilia. Thomas has said he did not think he was required to report the trips from Crow and other transactions. 

In Starer’s final exchange with Kagan, the justice wrote that she wanted her schoolmates to know it was the thought that counts, saying, “I’m very grateful.” 

Correction: Due to an editing error, an earlier version of this article said Ann Starer was in the process of returning Hunter alumnae’s donations for the gift basket. In fact, the money and tchotchkes were returned in 2021.

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