Supreme Court Justice Elena Kagan said in a visit to George Mason University on Monday that “it’s long past time to stop” voting strictly along party lines when confirming Supreme Court justices because it politicizes the process in a way that is detrimental to the court’s purpose and stature.
“This is a relatively new phenomenon, and it’s now thoroughly bipartisan in the bad way,” Kagan said to a capacity crowd at the second annual Roger Wilkins Lecture in The MIX at Fenwick Library on the Fairfax Campus. “It’s gotten to a bad place, and it makes the court seem political in a way I don’t believe the court is political. Somehow people have to get back to where they were…. I think everybody on the court feels this way.”
Kagan’s 70-minute conversation with Robinson Professor of Public Affairs Steven Pearlstein covered a wide range of topics, from a nuanced explanation of the day-to-day workings of the Supreme Court to the Manhattanite’s unlikely hunting expeditions with fellow Justice Antonin Scalia to clerks de-snarking her sharply worded dissenting opinions.
Kagan, who in 2010 became the fourth woman to serve on the Supreme Court, pointed out to Mason students that her climb to the Supreme Court was not one of planning but one of opportunity. She did not intend to attend law school until the year before she enrolled yet went on to become the first woman to serve as U.S. solicitor general and also the first to serve as dean of Harvard Law School, her alma mater.
“People this age—college students, law students—they tend to plan too much,” Kagan said. “The best advice you can give people—you know, planning some is good and important—but it’s really just to keep your eyes open to opportunities that might pop up…. Things come about that you never would have expected, and the only thing that you have to know how to do is how to grab those opportunities when they do arise.”
Natalie Pixler, a freshman international politics major from Dallas, said that Kagan’s detailed description of the Supreme Court processes “demystified” the judicial body for her and gave her a greater understanding of the court. But it was two words of advice from Kagan that most struck her. When Pearlstein referenced student anxiety about their careers, Kagan immediately responded: “Chill out.”
“That spoke to me directly because it is definitely a lot of pressure right now when you’re trying to figure out what to do with the rest of your life," Pixler said. “And then just having someone in such a high position say it’s going to be OK really touched me. She’s made it. And she didn’t know exactly what she was doing and yet she made it.”
Third-year Mason law student Krystalyn Weaver, sitting among several of her Antonin Scalia Law School peers, found “inspiration” in Kagan’s words and her approach to her position. (Kagan spoke on behalf of the Supreme Court at the dedication of the Scalia Law School in 2016.)
“I think as law students we are taught a lot of reverence for the court but also to be critical,” Weaver said. “Particularly at the end when she talked about the arc of the court in history and how they’ve done well for the American people, that’s a lot of why I’ve found such a calling in the law.”
Kagan spoke of what she called her “high-class disappointments” of being turned down for prominent positions, including initially losing out on a Supreme Court appointment to Justice Sonia Sotomayor. She also lamented how some of her best-written lines in her dissents are edited out by conscientious clerks who admonish her with “Just too much snark, Justice Kagan.”
But perhaps Kagan’s most vivid story involved a promise she made to a senator who was quizzing the Supreme Court candidate about her knowledge of hunting, which at the time was scant. Kagan promised the senator that if she were confirmed as justice she would ask avid hunter Scalia to teach her more about it. Kagan and Scalia ventured out two or three times a year, hunting deer in Wyoming, ducks in Mississippi and pheasant and quail as well.
“Didn’t expect me to have hunting stories, did you?” Kagan said.
Pearlstein closed by asking Kagan to describe the best and worst parts of her job. The best part, Kagan said, is the opportunity to weigh the most fascinating legal questions of the day and to play an active role in achieving justice. Her description of the worst part of the job—losing cases—was equally passionate.
“Sometimes I come back from conference, and I want to ram my fist through a wall,” Kagan said. “But I think we all feel that at times, every single one of us. You have to understand that you’re not going to win them all where nine people [have] different views of the law…. Sometimes my views will prevail, and sometimes they won’t.”
The Roger Wilkins Lecture, presented by Mason’s Philosophy, Politics and Economics Program, is named in honor of the late Robinson Professor of History and American Culture. Wilkins, a civil rights activist and first black assistant attorney general, served under Presidents Kennedy and Johnson.
Wilkins’s daughter Elizabeth Wilkins, who clerked for Kagan, introduced the justice at the lecture.
(by Preston Williams writing for The George)