Supreme Court isn’t partisan, Kagan says
Justices try to make sure they don’t appear deeply divided “like every other institution in America”
At a time when partisan politics seems to have taken hold of the country, U.S. Supreme Court Associate Justice Elena Kagan believes that the country’s highest court remains independent.
Kagan spoke Tuesday evening at the University of Colorado Law School’s John Paul Stevens lecture, answering pre-selected questions about her professional career, her advice for law school students and her work on the Supreme Court.
Although the justices don’t always agree on decisions, to call the court politicized isn’t accurate, Kagan said. In looking at many of the Supreme Court’s 5-4 rulings last year, Kagan said Americans will notice various alliances in the justices’ decision-making.
Often, she said, the “hot-button issues” on which justices disagree are more about different ways to interpret the Constitution than about party lines.
“I do think people’s views and concerns about this can be exaggerated, which is not to say there’s not a kernel there that really ought to be taken seriously,” she said.
In Kagan’s view, the justices have to work hard to make sure they don’t appear partisan and deeply divided “like every other institution in America,” and members of the public should try not to jump to conclusions based on one case decision.
That’s not to say she agrees with every decision, as evidenced in the dissent she wrote in the 2019 Rucho vs. Common
Cause case regarding partisan gerrymandering. But even in that case, the issue wasn’t about whether the justices agreed that extreme partisan gerrymandering was constitutional, but whether the justices felt they could weigh in.
For Kagan, who wrote the dissent, the decision was clear.
“If the court is not going to protect the basic structures of our democracy, then it’s hard to
know what the court’s role is,” she said.
Kagan also addressed a question about political pressures on the court, saying the country has had a contentious legislature and strong executive for a long time.
“I do not think the court should define its own rules based on the fluctuations based on what happens in the executive or legislature,” she said.
While those decisions don’t affect the court in the short term and she doesn’t believe the justices should become more or less aggressive in their decisionmaking based on what’s occurring during the political process, she recognized that it could ultimately have long-term implications.
Similarly, Kagan said she understood the wish for having a less politicized confirmation process, but she said it’s up to Congress to make those changes.
“All of us sort of look back at those times and say that’s how the process should work rather than these sort of pitched battles between parties,” she said.
She also addressed a comment she made about the confirmation process before she was going through it herself, calling it a “vapid and hollow charade” in 1995. Kagan said she based her comment on Justice Ruth Bader Ginsburg who was “remarkably good at never really answering anything” during her confirmation process.
“Years and years later, I really tried to emulate that, of course,” Kagan said.
It’s a tough balance between maintaining ethical rules for nominees and remaining open but also being able to answer senators’ questions, she added.