Supreme Court Justice Kagan On Remembering Justice Scalia, Political Pressures, and Texting (or Not) Among the Justices

Wednesday night in front of a packed house of 500 University of Arizona Law students, faculty, staff, alumni, and friends, Supreme Court Justice Elena Kagan spoke about potential political pressures, her own path to the court, and her friendship with colleague and hunting buddy Justice Antonin Scalia.
 
She spoke in a Q&A moderated by Dean Emerita Toni Massaro and Dean Marc Miller for the 37^th McCormick Lecture, sponsored by the College of Law’s J. Byron McCormick Society for Law and Public Affairs. The event was originally set for Feb. 15, but was rescheduled following the Feb. 13 death of Scalia.
 
“He was as generous, warm, and funny as a person could be,” said Kagan of Scalia, a strong presence on the court whose opinions often conflicted with Kagan but was a close friend who introduced her to one of his favorite pastimes—hunting—after she joined the court. “I miss him a lot.”
 
Kagan fondly recalled that it was Scalia who forcefully challenged her in the first minute of her first oral argument before the Supreme Court, when she represented the United States as solicitor general in Citizens United v. Federal Election Commission in 2009. She said that before the hearing, “I wasn’t at all convinced I would be good at it,” but that Scalia’s interruption was actually a jolt to her nerves and spurred her to move forward more confidently.

When asked what she thinks Scalia’s legacy will be, she said that while his originalist view of the Constitution is what he’s known for now, she believes that “his truly long lasting legacy is in statutory interpretation. He changed the way everyone does it.” She added that he also “almost singlehandedly” transformed oral argument from a somewhat measured event to one marked by intense questioning and rapid-fire exchanges.
 
Asked about possible political pressures on the court and Senate Republicans’ refusal to grant a confirmation hearing for current Supreme Court nominee Merrick Garland, Kagan said the only political influence that exists when it comes to the justices is where it belongs: in the nomination and confirmation process.
 
Once confirmed, she said, “None of us think, ‘Would the president like this or not like this? Would Congress like this or not like this?’ It’s utterly irrelevant.”
 
She also said that disagreements among the justices are not a matter of political ideology, but rather different methods of interpreting the Constitution.
 
Earlier in the day, Kagan met with UA President Ann Weaver Hart and senior university officials, followed by a breakfast with law faculty and lunch with law students, both of which included Q&A sessions.
 
“I am extremely grateful to have had not just one, but two opportunities in one day to hear from Justice Kagan in such an intimate setting,” said third-year JD student Tai Summers. “She was truly engaging to listen to, and it was an incredible experience.”
 
Dean Marc Miller said Justice Kagan’s visit was an important one for everyone involved.
 
“Through her meetings with faculty and students and the public conversation, Justice Kagan gave the University of Arizona community thoughtful insights into the inner workings of the Supreme Court, and even more how she approaches her work,” said Miller. “The discussion about diversity of thought and background on the court and in the public eye, the large degree of agreement around both method and substance while recognizing highly visible differences among the justices, and the complexity of the law are ideas our students will carry with them throughout their careers.”
 
Kagan is the eighth Supreme Court justice to have visited Arizona Law in recent years. Chief Justice William Rehnquist taught a February course for 11 years, and the college’s Rehnquist Center on the Constitutional Structures of Government honors his legacy and promotes themes he helped advance. Justice Sandra Day O’Connor also taught a February course for a number of years and gave the inaugural Rehnquist Center Lecture in 2007. Scalia and Justice Stephen Breyer each visited twice: they appeared in a Rehnquist Center program together in 2009 after having each delivered individual lectures in prior years. Chief Justice John Roberts delivered the Rehnquist Center Lecture in 2009, Justice Ruth Bader Ginsburg gave the Marks Lecture in 2006, and Justice Anthony Kennedy gave the 1998-99 McCormick Lecture.
 
Other notable moments from Kagan’s conversation:

• After being introduced as the “hippest justice,” known for her wit and pop-culture awareness, Kagan deadpanned, “Some might say it’s a low bar to be the hippest justice on the Supreme Court.”
• About diversity on the court, Kagan acknowledged that it could be more racially diverse and that only a few law schools and geographic regions are represented, but said she doesn’t think that has much influence on the justices’ decision-making.
• Kagan said not much has changed about the way the Supreme Court works since she clerked for Justice Thurgood Marshall during the 1987 Term, except the volume of cases they accept, which has declined by about half. “The rest of the world has had a technological revolution; the court, not so much,” she said, adding that they don’t use email or text, and that reading briefs is the principal way they take in information.
• The court receives about 8,000-9,000 petitions per year, and it accepts 75-80, most of which are cases that involve a circuit split, when different federal courts of appeals have delivered conflicting verdicts on an issue.
• Staying true to her law school days and tenure as dean at Harvard Law, Kagan employs the Socratic method with her clerks, encouraging lots of back-and-forth discussion, challenging the logic of any position, and often keeping her own views quiet. Clerks are deeply involved in editing briefs, and Kagan invites them to “rip me apart” if they disagree with something.

 
Media Coverage of the McCormick Lecture

C-SPAN
"Justice Elena Kagan on Supreme Court and Consitutional Law" (Video)

Arizona Public Media
“In Tucson, Supreme Court Justice Kagan on Scalia, Her Job”

Arizona Daily Star
“Justice Kagan in Tucson: Court doesn’t feel political pressure”
 
Arizona Republic
“Justice Elena Kagan talks about her warm relationship with her late colleague Antonin Scalia”
 
UA News
“Justice Kagan Discusses Inner Workings of Supreme Court”

Daily Wildcat
“U.S. Supreme Court Justice Elena Kagan speaks at UA”