Justice Elena Kagan (2015). Credit: Diego M. Radzinschi / ALM

U.S. Supreme Court Justice Elena Kagan, who dissented passionately from the court's refusal last month to prevent partisan gerrymandering, said Thursday her words were written “for all those people out there who in some way can carry on the efforts against this kind of undermining of democracy.”

“Go for it, because you're right,” Kagan said, speaking in a conversation with Dean William Treanor at Georgetown University Law Center.

Kagan was responding to the dean's question about whether Kagan ever has an audience in mind when she writes dissents. Her audience varies, Kagan said, because there are different kinds of dissents. Sometimes she writes in dissent because she saw a case differently from the majority, she said. But she said other cases, like the gerrymander case, are different.

“I didn't pull my punches as to the importance of that decision to the political system and the way we govern ourselves,” Kagan said. “There, you're not writing a dissent because you saw the thing differently. You're writing the dissent because you want to convince the future—and the present, too.”

The 5-4 majority in two partisan gerrymander cases this past term held that there were no judicially manageable standards for judges to determine when partisanship in redistricting is so excessive that it violates the Constitution. Kagan, joined by the court's three other liberals, vehemently disagreed and pointed to how lower court judges already were finding ways to root out excessive partisanship.

“Of all times to abandon the court's duty to declare the law, this was not the one,” Kagan wrote in her dissent. “The practices challenged in these cases imperil our system of government. Part of the court's role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent.”

Chief Justice John Roberts Jr. said the dissenters in the gerrymandering cases were seeking an “unprecedented expansion of judicial power.” Roberts said the Supreme Court has “no commission to allocate political power and influence in the absence of a constitutional directive or legal standards to guide us in the exercise of such authority.”

There were difficult issues in the case, Kagan said Thursday. “You can understand why the majority reached the decision it did and I'm 100% certain the majority was acting in good faith in reaching the decision it did,” she said. “But I want the majority to think about this going forward.”

Kagan spent part of the Georgetown conversation, co-sponsored by the Washington Council of Lawyers, discussing Justice John Paul Stevens, who died Tuesday at age 99. Kagan was nominated and confirmed to fill Stevens' seat when he retired in 2010 after nearly 35 years on the high court.

Supreme Court Justice John Paul Stevens moderating a panel discussion at the Newseum on Feb. 26, 2009. Photo: Diego M. Radzinschi/ ALM

Kagan said the court will begin a week of mourning Stevens' death “but if it is ever appropriate to say it's also a celebration of a life, it is that, too. My gosh, 99 years old, sharp as a tack until the day he died and he went very peacefully—we all should have a life like that.”

Stevens was “absolutely brilliant” in the technical aspects of lawyering, she added. At the same time, he insisted that “our legal institutions be fair and that is what really marked him as a justice.” She called Stevens “fiercely independent” who throughout his career had a strong sense of doing what he thought was right. At the same time, he was the model of collegiality.”

Stevens never imposed advice on her, Kagan said, but simply made himself available if she needed it.

“One of the things he said that really stuck with me—he said he tried to think every term about all the things he could learn the next term,” Kagan recalled. “Most people doing a job 35 years, think they've got it down. One real aspect of his greatness was he was constantly thinking and rethinking what he didn't know yet.”

She continued: “It's a great lesson for everybody but especially so for judges. Everyone treats you as special and everything you do is important that it's easy to convince yourself you know everything. He was the absolute antithesis of that.”

Stevens's body will lie in repose July 22 in the high court's Great Hall on the Lincoln Catafalque, which has been loaned to the court by the U.S. Congress for the ceremony. A 1991 portrait of Stevens by James Ingwersen will be on display in the Great Hall. Former law clerks to the Justice will serve as honorary pallbearers.

A private funeral service and interment is set to be held at Arlington National Cemetery on July 23.

 

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