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Justice Kagan: U.S. Supreme Court more complicated than the divided public knows

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A man and woman hold a discussion on a stage.
U.S. Supreme Court Justice Elena Kagan speaks in Northrop Auditorium in Minneapolis as part of the Stein Lecture on Monday.
Jasmin Kemp | Minnesota Daily via AP

Justice Elena Kagan said a common misconception about the U.S. Supreme Court is that she and her colleagues are partisan actors simply carrying ideological water for the presidents who appointed them. The justice spoke Monday at the University of Minnesota in an interview with professor and former law school dean Robert Stein.

Kagan became a U.S. Supreme Court justice in 2010, the second appointee by President Obama. Previously, she was U.S. Solicitor General, who argues the government’s side before the high court. 

“What the solicitor general does is really think about the court all the time,” Kagan said. “I thought that I had a pretty good understanding of the court and how it functioned and who was on it and how they thought.”

Kagan also got a close-up view of the high court as a young attorney when she clerked for Justice Thurgood Marshall.

“If what it means to be a great lawyer is to do justice, he was the greatest lawyer of the 20th century, he and the people he worked with at the Legal Defense Fund breaking down the Jim Crow system of segregation.”

The Supreme Court hears just a tiny fraction of the cases it receives. Noting the country’s sharp political polarization, Kagan pointed out that the nine justices decide around half of those cases unanimously. Five-four decisions on hot-button issues split along ideological lines dominate the news, but Kagan says there are many scrambled votes that belie public perceptions of the court.

“I think it would be very hard to tell a story of a politicized court. The 5-4 cases that we had were 5-4 in all kinds of different ways, often with lots of people doing unexpected things.”

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Kagan says the court should do its best to find consensus and avoid sharp ideological splits. She notes that the court has a long tradition of collegiality. Kagan often tells the story about her confirmation process, when a senator asked if she’d ever gone hunting — a not-so-subtle way of pressing her for an answer on gun rights. She replied that if confirmed, she’d ask Justice Antonin Scalia to take her hunting.

“And when I got on the court, I went to Justice Scalia and I told him this story. And Justice Scalia, who had a fantastic sense of humor laughed and laughed and laughed, and said ‘let’s go.’”

The two justices hunted together several times after that, solidifying a friendship that lasted until Scalia’s death in 2016.

Elena Kagan is one of three women on the high court, and only the fourth ever to serve. But she says in most arguments having a female perspective is irrelevant; women have as many different legal philosophies as men do. But there was one case that stands out from her time as solicitor general. It involved a 13-year-old girl who was strip searched by school staff who’d suspected the student of hiding illegal drugs.

“You could tell that Justice [Ruth Bader] Ginsburg, the way she was talking about this case, it was like she was seeing pictures in her head of what had happened. And I have to say that some of her male colleagues did not have the greatest day of their lives. They were joking about it and laughing about it.

The court ruled 8-1 against the school district. 

“The reason to have women there and the reason to have diversity of all kinds has to do with the court having the respect of the American people and having legitimacy in the American people’s eyes,” Kagan explained. “And I think to do that it helps that the court looks like America.”

Kagan said it was only when she became solicitor general that she thought sitting on the Supreme Court was even a possibility. Her career took many twists and turns over the years, and landing one of the nine positions was largely a matter of luck.

“I don’t think it’s the kind of thing that anybody can seriously say ‘I aspire to be a Supreme Court justice.’