Hours after Trump's argument, cautious reflections from Justice Kagan


“Another slow day at the office?”

It was Thursday afternoon and Justice Elena Kagan was preparing for a public conversation at the Library of Congress. She had agreed to it long before the Supreme Court scheduled a special special session that morning to hear arguments over whether former President Donald J. Trump is eligible to hold office again.

The audience laughed knowingly at this opening question from Chief Judge Jeffrey S. Sutton of the United States Court of Appeals for the Sixth Circuit. Justice Kagan said the sequence of events had a silver lining.

“It would be impossible to make the news today,” he said, “because everyone would be focused on the morning.”

Still, the conversation had its revealing moments, not least because Judge Sutton is the author of two books on the role states should play in crafting constitutional law. Hours earlier, Justice Kagan, by contrast, had scoffed at the idea that Colorado should be able to decide whether Trump could remain on the primary ballot there.

“The question that needs to be faced,” he told a lawyer for voters questioning Trump's eligibility, “is why a single state should decide who will be president of the United States,” adding: “This question of whether a former “The president is disqualified from insurrection to be president again, you know, just say it, it sounds awfully national to me.”

That statement, from one of the court's liberal members, along with skepticism from the majority of the justices, suggested that Trump was likely to prevail in the case and would be allowed to remain on the ballot nationwide unless the Congress will act.

Justice Sutton, whose books are subtitled “The States as Laboratories of Constitutional Experimentation” and “The States and the Making of American Constitutional Law,” addressed the question of state power generally. He noted that Justice Louis D. Brandeis, whose seat Justice Kagan holds, had been a proponent of allowing states to experiment with different approaches.

“Do you think there's still a role for states to play, or do you think it's just 'that was then and this is now' and that things are really a little different?” she asked.

Justice Kagan, as is her custom, turned the question around and asked what the justice thought. He responded: “It is quite dangerous to nationalize things too quickly, whether through legislation or court decisions.”

When asked for his own opinion, he said: “You know, we had a discussion about this this morning. “I’m a little afraid to go further.” Yes, he admitted that there is a role for the states “from time to time, and then the question is at what times.”

Judge Sutton, in good humour, said: “You are very evasive.” Justice Kagan responded that “perhaps we should move on to a different question.”

She was more communicative on less current but no less urgent issues, such as respect for precedent and the value of consensus.

When the law “changes course” after personnel changes, he said, “it doesn't seem like a law anymore. It seems like a form of politics.”

“And I think that's especially important for this Supreme Court right now,” he said. “That law should not be seen as a form of policy where just because the composition of the court changes, a whole set of legal rules change with it.”

He didn't highlight particular cases, but it was a good bet that the court's 2022 decision overturning Roe v. Wade was among those he had in mind.

“What was once a right is no longer a right because the court is different,” he said. “I think that's very damaging to the court, very damaging to society.”

He said judicial humility plays a role, not rejecting the considered opinions of previous judges simply because a new member of the court would approach the issue differently.

“It's easy to walk onto the court and think, 'Well, what were they thinking?' And that has to be wrong. And my perspective is better. And that's why I'm going to do things my way.'”

The best view, he said, is that “there is a kind of wisdom of the times.”

“If many different judges have seen something different, you should ask yourself and then ask yourself again: Are you so sure you got it right? Maybe all those people who thought differently…maybe they were right.”

He said there was much to learn from the long period after Justice Antonin Scalia's death in 2016, when the court had only eight members.

“It forces you to reach an agreement where you don't believe it is possible to reach an agreement,” he said. “In fact, we felt it compelled us to have a conversation that was useful and valuable.”

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