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In a wide-ranging discussion that featured both laughs and in-depth discussions of the fundamentals of democracy, United States Supreme Court Justice Elena Kagan on Sept. 22 kicked off the 2023-2024 Notre Dame Forum.
In a conversation with G. Marcus Cole, dean of Notre Dame Law School, Kagan’s comments were centered around “the future of democracy,” this year’s theme for the forum. She addressed a full house at the school’s DeBartolo Performing Arts Center, where her remarks earned a standing ovation.
Cole and Kagan’s conversation ran the gamut, with topics including originalism, the nature of judicial dissents and, of course, Notre Dame football. Kagan quipped that she had come to Notre Dame wearing the wrong color: a red suit jacket the day before the Irish were set to take on the Ohio State Buckeyes.
Following are highlights from Kagan’s comments.
On being solicitor general
Before her confirmation to the Supreme Court in 2010, Kagan had been the U.S. solicitor general in the Obama administration — a position often referred to as the “10th justice” given the frequency with which the solicitor general appears before the court.
Kagan had no judicial experience prior to joining the high court, but she described being solicitor general as “superb preparation” for joining the nation’s top tribunal.
As solicitor general, Kagan said she learned about the procedures and personalities of the court she would eventually join. She quipped that her job as solicitor general was to get nine justices to agree with her argument — as justice, she said, she only has to convince eight.
On originalism
Kagan’s judicial career began with a bang when, during her confirmation hearing, she remarked, “We’re all originalists.” That phrase has followed Kagan in the ensuing 13 years as the debate over originalism has intensified.
Asked by Cole to explain her views on originalism, Kagan clarified her exact words: “In that sense, we’re all originalists.”
The “sense” she was referring to, Kagan told Cole, is her view that the meaning of the Constitution evolves over time — a view that she said is consistent with what the framers intended.
Kagan gave the example of the 14th Amendment’s equal protection clause — a clause she told Cole was not originally intended to apply to either of them.
In the true originalist sense, she said, that amendment would have to be read in the context of the 1860s, which would not have included equal protections for Black Americans or for women. Further, putting the text of the Constitution in its original context is difficult for judges, she said, because judges are not historians.
The framers, she said, “were speaking for the ages — and they knew it.” In other words, she argued, the writers of the constitution knew that the meaning of their words would change over time, and they intended for later generations to apply the laws to the current context.
On precedent
Cole noted that recent major decisions from the court have overturned longstanding precedent largely along ideological lines, giving recent examples such as abortion and affirmative action.
Asked whether the issue of precedent is becoming ideological, Kagan replied, “I surely hope not.”
The justice acknowledged the concept of stare decisis is counterintuitive in that it requires upholding precedent even if a jurist thinks that precedent was wrongly decided. But that’s necessary, she said, because it promotes judicial humility, stability and nonpartisanship — and promotes confidence in the judiciary.
“When the court goes back and forth, it makes people think courts are making it up on the fly,” Kagan said. “That is an extremely damaging thing for the judicial system and the country.”
On voting
In a similar vein, Cole asked Kagan about her dissent in Brnovich v. Democratic National Committee, 594 U.S. ___ (2021), where a 6-3 conservative majority determined an out-of-precinct voting law in Arizona did not violate Section 2 of the Voting Rights Act. Challengers had argued that the law discriminated against minority voters.
In her dissent, Kagan wrote that the majority gave a “cramped reading to broad language.”
Cole asked Kagan whether she thought the VRA should be read more liberally, but she said no — instead, she said she thinks the statute at issue should be read “as written,” and the majority failed to given the statutory language a fair reading.
On gerrymandering
Kagan then discussed another of her dissents, this time in Rucho v. Common Cause, 588 U.S. ____ (2019), where a 5-4 majority determined gerrymandering claims are not justiciable because they present political questions beyond the purview of the federal courts.
Insisting that the court “has a responsibility to protect the mechanism of democracy itself,” Kagan told Cole she disagreed with the idea that the high court could not step in to stop obvious partisan gerrymandering.
If the “system” is working — that is, if every vote counts equally — then courts should let the political process work, she said.
“But the necessary thing is to make sure the rules aren’t completely skewed from the outset, because then the results are going to be skewed and indeed illegitimate,” she continued.
On dissents
Cole then turned to Kagan’s dissent in the recent decision striking down the Biden administration’s plan for widespread student loan forgiveness.
In the majority opinion, Chief Justice Roberts wrote, “It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary. … We do not mistake this plainly heartfelt disagreement for disparagement. It is important the public not be misled either. Any such misperception would be harmful to this institution and our country.”
In response, Kagan wrote in her dissent, “… I do not at all ‘disparage[]’ those who disagree. … And there is surely nothing personal in the dispute here. But Justices throughout history have raised the alarm when the Court has overreached — when it has ‘exceed[ed] its proper, limited role in our Nation’s governance.’ It would have been ‘disturbing,’ and indeed damaging, if they had not. The same is true in our own day.”
Asked to expand on that exchange, Kagan said she disagreed with one point Roberts made but agreed with another.
On the one hand, she agreed that the public should not take dissents as personal attacks, saying she “admires” Roberts as a person, jurist and institutional leader.
But she disagreed with the idea that it was “disturbing” to criticize the majority, saying instead that it would be disturbing to “pull punches.”
On an ideological divide
Cole then asked Kagan to weigh in on the perception of an ideological divide on the high court, which is currently split 6-3 between justices nominated by Republican and Democratic presidents, respectively.
While she said it’s “not surprising” that Americans would take note of high-profile cases decided along those lines — abortion, affirmative action and LGBTQ+ issues in recent years, for example — she also noted that 30%-40% of the court’s cases are decided unanimously.
What’s more, she said, there are frequently cases where the justices are “scrambled up” in terms of their votes, with Republican and Democratic nominees joining forces in unexpected ways.
She pointed to this year’s decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. ___ 2023. There, she and Justice Sonia Sotomayor — who are usually liberal “allies” in decisions — were on opposing sides, which garnered some attention.
“We fought pretty vigorously” about that decision, Kagan said of she and Sotomayor.
On the role of faith
Appearing at a Catholic university, Kagan was asked to comment on the role of faith in her life, both personally and professionally.
Kagan is a practicing Jew, which she described as “extraordinarily important” to her personal life.
However, “I hope it’s of no importance to my judging,” she said, adding that religions are “systems of morality” that should not influence a judge’s work.
On a SCOTUS code of ethics
In what was perhaps an expected question, Cole asked Kagan to weigh in on whether the Supreme Court should adopt a code of ethics — a question all nine justices have been getting in recent months as their decisions and outside affiliations have come under scrutiny.
While she acknowledged that lower courts have a defined code of ethics that governs their work, she said that code doesn’t “fit quite as well” with the work of the Supreme Court. Still, she said adapting such a code to better fit the contours of the high court would be a “good thing” for the court to do.
Asked who the “holdout” was who’s keeping the justices from formally adopting an ethics code, Kagan demurred. Instead, she said there are “various reasons” why some justices are hesitant to take such a step, and such reasons are prompting “good faith disagreements.”
On legal writing
Turning specifically to law students, Cole asked Kagan to provide some writing tips. Her response was concise: “Edit, edit, edit,” and read good writing.
On cancel culture
Finally, asked to weigh in on “cancel culture,” particularly at the university level, Kagan decried the practice of insulating yourself from differing ideas.
A democratic nation can’t succeed unless people from opposing sides talk to each and work together, Kagan said.
“It’s wrong and it’s counterproductive for our democracy and our society,” she said.•
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