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Jewish Supreme Court Justice
Elena Kagan Speaks at Penn
JARRAD SAFFREN | STAFF WRITER
I n America today, people are losing
faith in democratic institutions and
ending relationships over politi-
cal diff erences. A September Gallup
poll found Supreme Court “trust” and
“approval” to be at an all-time low.

An October New York Times/Sienna
College poll uncovered that almost a
fi ft h of Americans believed “political
disagreements had hurt relationships
with friends or family.”
Yet despite those fi ndings, United
States Supreme Court Associate Justice
Elena Kagan appeared before a group
of University of Pennsylvania students
on Oct. 21. Offi cially, the Jewish justice
was sitting down for a conversation
with new Penn President Elizabeth
Magill during the latter’s inaugural
festivities. But once she got through the Ivy
League red meat about serving as solic-
itor general, as dean of Harvard Law
School and now as a Supreme Court
justice, and about working alongside
former Presidents Bill Clinton and
Barack Obama, among others, she got
to the heart of the conversation.

Kagan, one of the leaders of America,
told its future leaders how Democratic
us.” Th e judge believes that the law
develops best when it does so “slowly,
and incrementally, by the work of many
judges over time.” She also thinks that
“it’s a kind of hubris to say, 'Well just
throw that all out because we think we
know better.'”
Th e assembled students, professors
and Penn staff members clapped again.

According to Kagan, this deliberate
pace prevents the court from “becom-
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From left: U.S. Supreme Court Associate Justice Elena Kagan speaks with
new University of Pennsylvania President Elizabeth Magill.

institutions could still work. And for
good measure, she explained how a
liberal from New York City like her-
self could build a friendship with a
conservative who went hunting on the
weekends in Antonin Scalia, the for-
mer Supreme Court justice who died
in 2016.

“Law should be stable,” Kagan said.

“People depend on law.”
Th e audience of about 900 people
in the Irvine Auditorium clapped
and drowned out the rest of Kagan’s
answer. But then the justice continued
explaining her theory about how the
legal system should work.

As Kagan said, “We think we know
everything, but it turns out people have
been doing law for a long time before
ing politicized.” Th e justice explained
that it’s a human instinct to look at an
old doctrine, call it counterintuitive
and say, “Why shouldn’t I just get rid
of it?”
But if judges come onto a court and
say they're overthrowing the apparatus
and the legal rules, “it starts not to look
like law anymore,” Kagan said. Such an
approach can degenerate into “tit for
tat,” as the justice described it.

“Maybe some other justices will come
on and they’ll do the same thing,” she
said. “Th ere are all these jolts to the sys-
tem, and it begins to look not like a court,
and more like a political institution.”
“Courts should be courts. Courts
should act like courts,” Kagan con-
cluded. Courtesy of the University of Pennsylvania
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Supreme Court Associate Justice Elena Kagan at Penn
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“Law should be stable.

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SUPREME COURT ASSOCIATE JUSTICE ELENA KAGAN
A major concern for family caregivers of persons
Later in the conversation, Magill
asked a question about how Supreme
Court justices get along when they
disagree on so much. Kagan was nom-
inated to be an associate justice in
May 2010 by President Obama and
confi rmed by the Senate three months
later. Over the last 12 years, she has
seen the court go from the moderate
body that upheld the Aff ordable Care
Act to the 6-3 conservative major-
ity that overturned the constitutional
right to an abortion. She watched the
previous president, Republican Donald
J. Trump, appoint three new justices to
reverse that balance of power.

Th rough it all, though, Kagan
remained an American who, as Magill
explained, would go on a hunting trip
with Scalia.

“Why did you do that?” Magill asked.

“I did it because I promised to,”
Kagan answered.

When the Jewish woman was going
through her confi rmation process, she
did a set of “courtesy visits,” as she
described them, to the senators who
would be responsible for confi rming
her. During those visits, the senators
could not ask her how she would vote
on a case, but they could fi nd ways to
ask her that without asking her that.

Conservative senators would pose
questions like, “Have you ever hunted?
Do you know anybody who’s hunted?”
Kagan told the laughing crowd that
she grew up in New York City, and
that in New York City “this is really
not what we did on the weekends.” But
during one visit, she invited herself to a
gun-loving senator’s ranch.

“And this look of total horror came
on,” Kagan said.

Kagan told Scalia the same story
aft er her confi rmation, and he started
“laughing uproariously,” she recalled.

But then he took Kagan to his gun club
and had his son-in-law teach her to
shoot. During the last fi ve-and-a-half
years of Scalia’s life, Kagan went hunt-
ing with Scalia “not once, but many
times.” “I enjoy his company very much,”
she said. JE
jsaff ren@midatlanticmedia.com
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