After completing her first year as associate justice of the United States Supreme Court, Elena Kagan said her biggest surprise sitting on the bench has been how warm her fellow justices have been to each other despite their differing viewpoints.
“I’m not sure it was a surprise surprise but it was, I suppose, how warm everybody is, how collegial the institution is,” she said on Tuesday during the Aspen Institute’s McCloskey Speaker Series during a conversation with moderator Elliot Gerson in the Greenwald Pavilion.
“I guess it comes as a surprise to many people when I talk about my experiences on the court, and to me as well,” she said. “When you read the court decisions and often there are some pretty sharp give and takes, people accusing other justices on the other side of a wide variety of terrible conduct. And you kind of think, like gosh, they must hate each other. The truth is it is completely not so.”
Kagan, 51, said she considers one of the nicest features of serving as one of nine Supreme Court justices to be the good friendships that are formed throughout the institution, despite the ideological divides that run through it.
Gerson said that work environment is remarkable considering the partisanship and lack of collegiality across the street on Capitol Hill. He asked Kagan why she thinks that is and commented “too bad it’s not contagious.”
Kagan said she hadn’t thought about it much but said one distinction is that the court makes deliberate arguments in writing.
“It’s not for the most part sound bites,” she said. “It’s reasoned argumentation.”
She noted a book she just read called “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices” during an era when the justices weren’t so collegial to each other.
“They hated each other, their relationship was pathological,” she said of the justices then.
Kagan said the minute after the Senate confirmed her, the first phone call she received was from John Roberts, chief justice of the Supreme Court. He congratulated her and said they’d be serving together for 25 years.
“I said ‘only 25?’” she said to an eruption of laughter. “... I don’t want to say that it’s like you have an incentive to like each other. I think that you can live in an institution happily or you can live in an institution sadly. You can live with people respectfully or you can live with people without that. If you are going to be some place for a long time, boy, it makes you value collegiality.”
Kagan was appointed by President Barack Obama as Solicitor General in 2009, a role in which she argued several cases in front of the Supreme Court. That experience, she said, gave her great perspective on how to persuade nine justices to make a decision.
“Now my job is to convince eight Supreme Court justices,” she joked.
Among one of her most difficult cases, she said, was the constitutionality of the California law that would have banned the sale of violent video games to minors. The court in June struck down the law 7-2 using the First Amendment as the reasoning.
“It was the case where I struggled most and thought most often I’m on the wrong side of it,” she said. “You could see why the government would have wanted to do this and you can see the kind of danger it was worried about, the kind of effects these extremely violent video games have on young people.”
She added it was easy to see what the state was doing and it seemed reasonable.
“But I couldn’t figure out how to square that with our First Amendment precedence and precedence is very important to me,” she said about her vote to invalidate the California law. “I sweated over that mightily.”
Kagan also discussed other cases in the past year that have highlighted the court’s position on the First Amendment.
“I think what you have to say, and people have been saying this, is this is a court that is extremely protective of the First Amendment and extremely protective of speech,” she said. “There is no question the court has a very expansive view of the First Amendment.”
Gerson asked Kagan if the Supreme Court is the least understood branch of government.
She responded by saying that if cameras were allowed in the courtroom, it wouldn’t be.
“I think it’s a good idea,” she said. “This is an unbelievable court to watch, actually.”
Kagan noted how everyone is incredibly smart, prepared and deeply concerned about getting to the right answer.
“If everybody could see this it would make them feel so good about this branch of government and how it operates,” she said. “Reading about it is not the same experience.”