Kagan on SCOTUS: 'The whole thing is a pretty good gig'

Justice participates in Stein Lecture at University of Minnesota Law School

By Barbara L. Jones
BridgeTower Media Newswires
MINNEAPOLIS, MN — Some pundits say that Supreme Court justices tend to vote against the advocate during whose argument the justice made a joke. If that’s true, Justice Elena Kagan will rule against the crowd at the University of Minnesota.

The personable justice began her appearance on Oct. 21 with a warm hug with law school Dean Garry Jenkins who introduced her at the annual Stein Lecture, sponsored by Professor Robert Stein, a 1961 graduate of the school, former dean and former executive director of the American Bar Association.

Stein began his Q&A by asking Kagan what was the best part of being a Supreme Court justice.

“Hearing introductions like [Jenkins’],” Kagan replied. “I feel like we could call it a day and go home.” But she didn’t.

Kagan made it clear that, as she said, it is hard not to love the job, which is a tremendous responsibility and also a lot of fun. “The whole thing is a pretty good gig.”

(Kagan, you may recall, was asked at her confirmation hearing by Sen. Lindsey Graham ((R-S.C.)) how she spent Christmas. “Like all Jews, I was probably at a Chinese restaurant,” she replied.)

Kagan was appointed to the court in 2010 by President Barack Obama. She had no judicial experience before her appointment but a wide variety of other experience. She clerked for Judge Abner Mikva of the D.C. Circuit and Justice Thurgood Marshall at the Supreme Court. She was a professor at the University of Chicago Law School, associate counsel and deputy assistant to President Bill Clinton, then professor at Harvard Law School, and then dean of the law school. She became Solicitor General in 2009 and was appointed to the court in 2010.

Kagan said her experience gave her a good understanding of the court — the Solicitor General is sometimes called “the tenth justice” — with the exception of the conference room. It was “inspiring” to see the collegial and vigorous debate among the justices, she said. “We quite like each other.”

But dissents happen. Last June, the court split 5-4 in Rucho v. Common Cause, a case about gerrymandering, where Kagan read her dissent from the bench. (She was joined in the dissent by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Stephen Breyer.)  In that case, the court declined to decide what it called a political question and dismissed for lack of jurisdiction, which Kagan called “tragically wrong.”

“For the first time in this Nation’s history, the majority declares that it can do nothing about an acknowledged constitutional violation because it has searched high and low and cannot find a workable legal standard to apply,” Kagan wrote.

Asked if tough dissents can strain the relationships among the justices, Kagan said, “I give as good as I get.”

She also recalled Justice Antonin Scalia’s viewpoint on dissents—“If you take it personally, you’re in the wrong business.”

Kagan took the discussion a step further, saying that the “alternative view” expressed in a dissent should be “as powerful as you can make it, as persuasive as you can be.” She also said that Rucho was a “pretty obvious” case in which to read the dissent from the bench because it was important for the country and the court went wrong.

At other times, the court will work hard to find common ground. That was the experience when the court was down to eight members for a time. When that happens, there is a “special obligation to reach some kind of agreement” rather than have a tie, she said. “I like to think that all of us who engaged in that effort learned something from it,” Kagan said. That effort is one way the court preserves its legitimacy and the public’s trust and confidence in it, she said.