Justice Elena Kagan on Monday said it's “just too soon” to tell how the U.S. Supreme Court will function without a centrist like Justice Sandra Day O'Connor or the eclectic, but often decisive views of Justice Anthony Kennedy.

“It's just too soon to tell how we will function without somebody who is naturally in one of those modes,” said Kagan during a conversation with Canada Supreme Court Justice Rosalie Abella at the University of Toronto Faculty of Law. “It could be somebody will become such a justice, or it could be that they won't.”

Just the absence of a center justice, Kagan added, can “affect institutional dynamics in ways that are hard to predict. American court watchers would say this is an interesting time to think about our institution because for first time in quite some time not all of the attention will be on one person.”

Kagan answered a range of questions from Abella and law students during the hour-long conversation, but most of the questions focused on the divisive Senate confirmation of Justice Brett Kavanaugh, the sharp political divisions within America and the impact of both on the role of the Supreme Court.

Abella noted from the start how Canadians were “riveted” to the televised Kavanaugh hearings, “a fascinating thing for nice, gentle Canada to see.” She then lobbed her first question “on everybody's mind” to Kagan: “Do you like beer?” As the audience erupted into laughter and applause, Kagan replied: “What was your second question?”

Abella's question—relating to Kavanaugh's beer-infused colloquy with U.S. Sen. Amy Klobuchar during his hearing—was humorously intended. “I have no drinking problem, judge,” Klobuchar said during the exchange. Kavanaugh responded: “Nor do I.”

But a female law student, in a serious vein, asked Kagan if the legitimacy of the Supreme Court and its treatment of women would be affected by having two sitting justices with claims of sexual misconduct against them—a reference to Kavanaugh as well as Justice Clarence Thomas, who was confirmed to the bench despite allegations that he sexually harassed a former colleague, Anita Hill.

Kagan declined to answer the student's question, saying only: “I'm part of this institution. I care about it a lot. I care about my colleagues a lot.”

In response to Abella's questions, Kagan said the Senate confirmation process, in the abstract, “seems good to me from the perspective of transparency of government and people taking their constitutional roles seriously.” But in reality, she added, “it's a little bit hard to watch any of these hearings and feel they accomplish much.” Kagan said it was difficult to know how the Senate could ever get back to the time when high court nominees attracted considerable bipartisan support.

The justice said politics does not enter into the court's everyday job and that the justices discuss cases in the way students do in their law classes. “We talk about how to interpret the law, history, precedent—all the things when you're facing a hard legal issue. These bigger concerns about institutional legitimacy, the way in which court could do something that appears politicized or not—that's a very small, tiny part of what we do. But nobody can live in this world and not be aware of some broader context.”

After Justice Antonin Scalia's death in 2016, all of the justices were committed to finding as much consensus as possible to avoid 4-4 splits, Kagan said Monday. “When we went around the table and found we were divided, the chief would say, 'Let's talk about it some more' or think about it more and figure it out. We found ways to reframe questions and break out smaller questions.”

Especially in a divided time, she added, there is “incredible value” to the court in trying to find some consensus. “It's harder to do that when you are nine people; when you go around the table and we're 5-4, it's hard to keep talking.”

Abella said she was concerned about the tone of some of the justices' dissents because it has an impact on other courts. Kagan said sometimes a justice will call the justice drafting the opinion and ask that a word or sentence be taken out, but that is rare. “We have a pretty high bar,” she added. “Probably our bar is higher for what people consider out-of-bounds.”

As for what she would like to be her legacy, Kagan, now in her ninth year as a justice, said, “I can't answer that question for this job. I don't want to think that way. I think I want to do it case-by-case, sitting-by-sitting, year-by-year. You have to reflect a little bit on where you're going, but that would deprive me of the ability to take it a case at a time. I'll let the legacy stuff take care of itself.”

 

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