Supreme Court Justice Elena Kagan says justices can disagree and remain friends

jcheves@herald-leader.comSeptember 19, 2013 

Despite the rocks they throw at each other in some of their written opinions, the nine justices of the U.S. Supreme Court actually like and respect each other behind the scenes, Justice Elena Kagan told an audience Thursday night at the University of Kentucky.

"We disagree, but then we put things aside and come back the next day, fresh," Kagan said.

That wasn't always true, she added.

In fact, two Kentucky-born justices — James Clark MacReynolds, a notorious anti-Semite, and Louis Brandeis, the first Jew on the court — loathed each other, she said. MacReynolds would turn his chair to face away whenever Brandeis spoke in the court's private conference room, she said. (Court biographers note that MacReynolds, who served from 1914 to 1941, also hated blacks, women, foreigners and many other groups and individuals.)

By comparison, Kagan, typically a liberal vote on the court, said she quickly befriended Antonin Scalia, one of the most conservative justices. The two have hunted quail, pheasant and antelope and traveled out West together.

"I've enjoyed spending time with him," Kagan said. "He's a great guy."

Kagan, 53, spoke in a packed Singletary Center Recital Hall as part of the Roy R. and Virginia F. Ray Lecture Series at the UK College of Law.

President Barack Obama appointed Kagan to the nation's highest in 2010. Though she's the 112th justice in the court's history, she's only the fourth woman. Previously, she was the first female U.S. solicitor general, the lawyer who represents the United States before the Supreme Court, and the first female dean of Harvard Law School, her alma mater.

"My father was a lawyer, and I have to say, what he did never struck me as all that exciting," Kagan told the crowd. She said she attended law school because she couldn't think of any better option at that point. Once enrolled, she fell in love with legal procedure.

For someone who stumbled into the profession, she did remarkably well, clerking for Supreme Court Justice Thurgood Marshall and teaching law at the University of Chicago before going to the White House as an associate counsel and domestic policy adviser to President Bill Clinton. However, the wonky Clinton usually knew far more about any policy issue than his advisers did, which made her role a little superfluous, she said.

"We pretended to give him advice, and he occasionally pretended to take it," Kagan said.

As is the practice when justices speak publicly, Kagan did not discuss any specific case or controversy facing the court.

The court's thorniest cases are when it must decide whether to overturn an act of Congress, she said. Though Congress represents the people, the United States is a constitutional democracy, so the court is responsible for acting if a law violates the nation's founding document, she said.

In coming years, she said, the court will have to grapple with questions about fast-emerging technologies changing society. For example, the 4th U.S. Circuit Court of Appeals ruled this week that clicking "Like" on Facebook is constitutionally protected free speech; the case could be headed next to the Supreme Court.

Deciding these cases won't be easy for justices of "a certain age" who are not Internet-savvy, she said.

"My colleagues are like, 'What's Facebook?'" she joked. "It's a challenge."

John Cheves: (859) 231-3266. Twitter: @BGPolitics. Blog: bluegrasspolitics.bloginky.com

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