As Justices Change, 'Court Works as an Institution', Kagan Tells NY State Bar Leaders
Hailed by NYSBA president Hank Greenberg as a "consensus builder" and a "born judge," Kagan reflected for 35 minutes on her legal career and on the Supreme Court as an institution.
January 31, 2020 at 12:29 AM
4 minute read
The first time U.S. Supreme Court Associate Justice Elena Kagan ever went hunting was with her late colleague, Antonin Scalia.
During her 2010 confirmation process, the Upper West Side native had to admit to a number of U.S. senators that neither she, nor anyone she knew, had ever engaged in the pastime.
"My answers to the questions were quite pathetic," she said. And so she made a promise.
Kagan told one lawmaker that, if she were lucky enough to be confirmed to the high court, she would ask Scalia, the conservative jurist and exponent of an expansive view of Second Amendment rights, to take her hunting.
"It was the only promise I made in 82 office visits," she told a room of nearly 1,000 members of the New York State Bar Association at the American Museum of Natural History. "I quite liked it actually, so I did a lot of hunting with Justice Scalia."
Kagan, the former dean of Harvard Law School and the first woman ever confirmed by the Senate to serve as U.S. solicitor general, was honored Thursday night with the NYSBA's Gold Medal, the organization's highest honor, which recognizes distinguished service and outstanding legal accomplishments.
Hailed by NYSBA president Hank Greenberg as a "consensus builder" and a "born judge," Kagan reflected for 35 minutes on her legal career and on the Supreme Court as an institution.
She also raised the curtain on the "black box" of the Supreme Court conference room, where justices debate the merits of cases and decide how they will vote. The justices have a rule, Kagan said, that every justice must talk at least once before anyone is allowed to speak again.
"Sometimes we go around the table and people are where they are and I know nothing is going to change and we just keep talking and we just keep annoying each other," Kagan said.
"I continue to think that, if people could see it, they would be really proud of the institution, that the institution works really well, that people engage with each other on a very high plane, that there is really good and substantive conversation, that there is never voices raised, there's never any anger," she said. "People are trying to convince other people, and that's how a court should work."
A former clerk for Justice Thurgood Marshall in 1987, Kagan served for 15 months as solicitor general under President Barack Obama, before she was elevated to the Supreme Court in 2010. Tasked with arguing some of the nation's biggest cases, however, Kagan had no experience as an appellate litigator, and her first case before the high court came in reargument in Citizens United, where the court ultimately struck down restrictions on political donations by corporations.
"I lost that one," she said to laughter from the crowd. "The good guys lost."
Kagan noted the new composition of the court after two appointments by President Donald Trump, but her remarks Thursday largely avoided political commentary. Instead, she emphasized its personal qualities and the continuity of the court in changing times.
"Nothing changes at the Supreme Court," Kagan said.
"The court works as an institution, and it has worked. So you don't change what's not broke, I guess," she said.
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