Elena Kagan talks diversity and (dis)agreement on the Supreme Court
Justice Elena Kagan opened up about life on the Supreme Court on Thursday night during a wide-ranging, humor-filled interview, discussing what it’s like to write a dissent (with which she has had “a little bit of practice now”), diversity on the court, public opinion and what she anticipates will be the next important issues the court will take on.Kagan took care to steer clear of most specifics during the Yitzhak Rabin Memorial Lecture at Washington's Sixth and I Historic Synagogue, where she fielded questions from The New Republic’s Leon Wieseltier and others the renowned critic posed on behalf of audience members. However, the most-junior member of the court spoke in some detail about being in the minority, saying that there were two cases in her first term where she felt her dissents were particularly important: one about campaign finance and one about taxpayer dollars going to religious institutions.
There are two types of dissents, Kagan said. The first are cases, like the two she mentioned, that are particularly important and which lead a judge to write her dissent hoping that it will be read in the future as a “marker."
“You want to set down an alternative way of viewing the issue…in the hope that that might affect something in the next case, or the next case or the next case. You would love that some day this decision is going to be reversed and my way will be the law of the land,” Kagan said, though she noted those instances are rare.
Other times, though, Kagan said, a judge writes a dissent to explain why she disagrees and out of respect for the litigants and the law, but then she moves on and accepts the majority opinion as the law of the land.
Kagan also discussed her colleagues, saying that a lot of persuasion happens on most cases, despite “the stereotype of the four-four and we try to figure out where Justice [Anthony] Kennedy is.”
Kagan said that, although there are cases where justices “just see the law differently,” there are also those “where you can persuade each other and you can find a greater answer than anyone could see at the beginning. ... I love the cases where you can and you do move minds.”
Kagan was not asked about the court’s June decision on President Barack Obama’s health care law, during which Chief Justice John Roberts is said to have switched his opinion in advance of the ruling upholding the law's controversial individual mandate for health insurance.
Saying she genuinely “loves” her colleagues, Kagan praised her frequent intellectual opponent, Justice Antonin Scalia – with whom she revealed she spent three days hunting in Wyoming this fall. Asked to discuss how she interprets the language in laws the justices consider, Kagan credited Scalia with changing the direction of the court.
“This is in some ways a testament to one of my colleagues, to Justice Scalia, because if you look back 30 years ago … there was much less attention paid to the words Congress used to write a statute,” Kagan said. “One of the terrific things he has done is to make people engage with the words that Congress actually used, because that’s what they thought about and that’s what they actually passed.”
In what may have been a reference to upcoming cases such as two on gay marriage that the justices this month agreed to hear, Kagan was asked what role public opinion plays in the justices’ opinions.
“Well, I don’t think any of us make our decisions by reading polls,” Kagan said. “One’s sense of what to do as a judge is bounded in some way by the society in which one lives” and the political process of getting appointed, she said.
Still, the justice said, “One does think long and hard as a judge -- and I’m not sure I’ve ever been in this position --… before you do something that you think is required by law that would be incredibly disruptive to society, and that’s where great wisdom is called for.”
One issue Kagan did cite as increasingly likely to come before the court is privacy, especially in a changing world.
Praising her predecessor Louis Brandeis for his prescience on the issue, Kagan said he “understood how new technologies interfere with privacy, which I think will be one of the most important issues before the court in the decades to come”
Speaking before a Jewish audience on the sixth night of Hanukkah (the event was a fundraiser for the Jewish Primary Day School), Kagan was also asked about how her religion has affected her on the court, where she is one of three current Jewish justices. (The other six are Catholic).
“It feels very natural; it doesn’t feel like a big deal. And that is an unbelievable thing about this country,” she said.
And as for being a woman on the bench: “We go into the conference room; we close the door. I don’t think that very much turns very often on the gender differences.”
Kagan—a former Harvard Law School dean and solicitor general who joined the high court in 2010—did say “there are a lot of ways the court is not very diverse,” including justices’ resumes, hometowns and law schools.
“There are four of us from New York City. We have every borough covered except for Staten Island; we’re waiting for that Staten Island judge,” she said, noting that Justice Kennedy is the only member of the court from the West Coast. Likewise, when speaking at law schools, Kagan said she is often asked why none of the justices come from law schools besides Harvard and Yale, though “Justice [Ruth Bader] Ginsberg spent one year at Columbia -- you know, slumming it.”
Though Kagan said it was “too hard” to give advice to young women out there who might want to follow in her shoes, she did have one last piece of advice for lawyers – and it has nothing to do with oral arguments.
“The most important thing you can do to convince the Supreme Court is write a great brief,” Kagan said.
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