Justice Kagan: 'Time will tell' if court finds common ground

Justice Elena Kagan says “time will tell” whether the Supreme Court can get back to “finding common ground” after a term in which the court’s six conservatives and three liberals split over major issues including abortion and gun rights

Supreme Court Elena Kagan (Copyright 2022 The Associated Press. All rights reserved)

Justice Elena Kagan on Friday waded into the issue of divisiveness on the Supreme Court, saying that “time will tell” whether the court can get back to “finding common ground” after a term in which its six conservatives and three liberals split over contentious issues like abortion and gun rights.

The liberal Kagan has repeatedly warned over the last month that courts risk legitimacy and look political when justices needlessly overturn precedent and decide more than a case requires. Kagan said Friday it remains an open question whether the Supreme Court can begin “ratcheting down the level of decision making so that we can reach compromises.”

The court, which opened its new term earlier this month, has given no signs it intends to shy away from major issues. On its agenda are cases that involve issues of race, voting and the environment. But Kagan said she believes it's better if the law moves "in small steps rather than in big steps.” If the court can't do that, she said, she “will spend a lot of my time dissenting.”

Still, Kagan said she likes to think of herself as a “clear-eyed optimist.” “You know that I’m clear-eyed about the challenges and the difficulties but still remain hopeful,” she said.

Kagan spoke only obliquely about the decision of five of her conservative colleagues in June to overturn the nearly 50-year-old Roe v. Wade decision guaranteeing the right of abortion access. “You give people a right and then you take the right away, well in the meantime they've understood their lives in a different kind of way," Kagan said, adding that “law should be stable.”

Kagan was speaking Friday at the University of Pennsylvania, where she was interviewed by the school's president Liz Magill. The event was also livestreamed.

Kagan was asked about a range of topics, including being the first woman to hold a number of jobs. Kagan, the fourth woman to join the Supreme Court, said in general she doesn't believe women think differently about the law than men do. She pointed to Justice Amy Coney Barrett, an appointee of former President Donald Trump, who joined the court in 2020. “Justice Barrett and I, we agree about some things and we disagree about some things and being a woman just doesn't have all that much to do with it," she said.

Kagan also talked about her interview for her current job with former President Barack Obama. Kagan was Solicitor General under Obama, his top Supreme Court lawyer, a position she called “the best job in America.” She was initially considered for an opening on the Supreme Court that went to Justice Sonia Sotomayor. When another seat opened with the retirement of Justice John Paul Stevens, Kagan was asked to interview with the president again.

Things didn't quite go as planned, however, because the BP oil spill had just happened. Said Kagan of the president: “He literally walked in and he said to me, 'I know you. We don't have to talk, right?'” Kagan acknowledged the president had a lot of other things to do.

When she did get the job, she said, her first call was to now Attorney General Merrick Garland, then a federal appeals court judge, who was also under consideration for the slot. The two had known each other since Kagan was a Harvard law student.

“I was quite sure that if Merrick had gotten the job, I would have been the first person," he called, "just because that’s the kind of person he is so I thought, I should try to be that kind of person,” she said, calling him “extraordinarily gracious.”

Kagan also answered a round of rapid-fire questions including her favorite binge-worthy television — “ Game of Thrones ” until last season and “The Sopranos” — and what she likes to do if she gets a day off: golf.