Jewish Supreme Court Justice Elena Kagan Speaks at Penn

Supreme Court Associate Justice Elena Kagan at Penn (Courtesy of the University of Pennsylvania)

In America today, people are losing faith in democratic institutions and ending relationships over political differences. A September Gallup poll found Supreme Court “trust” and “approval” to be at an all-time low. An October New York Times/Sienna College poll uncovered that almost a fifth of Americans believed “political disagreements had hurt relationships with friends or family.”

Yet despite those findings, United States Supreme Court Associate Justice Elena Kagan appeared before a group of University of Pennsylvania students on Oct. 21. Officially, the Jewish justice was sitting down for a conversation with new Penn President Elizabeth Magill during the latter’s inaugural festivities.

But once she got through the Ivy League red meat about serving as solicitor general, as dean of Harvard Law School and now as a Supreme Court justice, and about working alongside former Presidents Bill Clinton and Barack Obama, among others, she got to the heart of the conversation.

Kagan, one of the leaders of America, told its future leaders how Democratic institutions could still work. And for good measure, she explained how a liberal from New York City like herself could build a friendship with a conservative who went hunting on the weekends in Antonin Scalia, the former Supreme Court justice who died in 2016.

“Law should be stable,” Kagan said. “People depend on law.”

The audience of about 900 people in the Irvine Auditorium clapped and drowned out the rest of Kagan’s answer. But then the justice continued explaining her theory about how the legal system should work.

As Kagan said, “We think we know everything, but it turns out people have been doing law for a long time before us.” The judge believes that the law develops best when it does so “slowly, and incrementally, by the work of many judges over time.” She also thinks that “it’s a kind of hubris to say, ‘Well just throw that all out because we think we know better.’”

The assembled students, professors and Penn staff members clapped again.

According to Kagan, this deliberate pace prevents the court from “becoming politicized.” The justice explained that it’s a human instinct to look at an old doctrine, call it counterintuitive and say, “Why shouldn’t I just get rid of it?”

But if judges come onto a court and say they’re overthrowing the apparatus and the legal rules, “it starts not to look like law anymore,” Kagan said. Such an approach can degenerate into “tit for tat,” as the justice described it.

“Maybe some other justices will come on and they’ll do the same thing,” she said. “There are all these jolts to the system, and it begins to look not like a court, and more like a political institution.”

“Courts should be courts. Courts should act like courts,” Kagan concluded.

Later in the conversation, Magill asked a question about how Supreme Court justices get along when they disagree on so much. Kagan was nominated to be an associate justice in May 2010 by President Obama and confirmed by the Senate three months later. Over the last 12 years, she has seen the court go from the moderate body that upheld the Affordable Care Act to the 6-3 conservative majority that overturned the constitutional right to an abortion. She watched the previous president, Republican Donald J. Trump, appoint three new justices to reverse that balance of power.

From left: U.S. Supreme Court Associate Justice Elena Kagan speaks with new University of Pennsylvania President Elizabeth Magill. (Courtesy of the University of Pennsylvania)

Through it all, though, Kagan remained an American who, as Magill explained, would go on a hunting trip with Scalia.

“Why did you do that?” Magill asked.

“I did it because I promised to,” Kagan answered.

When the Jewish woman was going through her confirmation process, she did a set of “courtesy visits,” as she described them, to the senators who would be responsible for confirming her. During those visits, the senators could not ask her how she would vote on a case, but they could find ways to ask her that without asking her that.

Conservative senators would pose questions like, “Have you ever hunted? Do you know anybody who’s hunted?” Kagan told the laughing crowd that she grew up in New York City, and that in New York City “this is really not what we did on the weekends.” But during one visit, she invited herself to a gun-loving senator’s ranch.

“And this look of total horror came on,” Kagan said.

Kagan told Scalia the same story after her confirmation, and he started “laughing uproariously,” she recalled. But then he took Kagan to his gun club and had his son-in-law teach her to shoot. During the last five-and-a-half years of Scalia’s life, Kagan went hunting with Scalia “not once, but many times.”

“I enjoy his company very much,” she said. JE

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