By Maureen Kelleher
Photo by Robert Kozloff
“ We are a particular legal system. Our Constitution is our Constitution, our set of precedents is a distinctively American one.”
U.S. Supreme Court Justice
During her recent visit to the University of Chicago, U.S. Supreme Court Justice Elena Kagan countered the view that today’s Court is contentious, divided and ideologically driven. Rather, as she told it, the Court is a “warm institution” where justices “listen to each other and try to find consensus where we can.” And its track record last year—a 9-0 consensus two-thirds of the time—would seem to support her case.
Kagan’s discussion with Institute of Politics Director David Axelrod was the latest in a series of visits to UChicago by Supreme Court justices in recent years. Six current or recent justices have spoken on campus in the last six years, and two of the current members have taught at the UChicago Law School—Kagan and Justice Antonin Scalia. The events have reflected the Court’s range of ideological views, but they also have shown what unites the justices in their legal calling.
Kagan credits her years teaching law at UChicago and Harvard with giving her the mindset to explain complex legal ideas clearly. “The job I had that I think about most on the Court is just the job as teacher. When I taught, I would come in the morning before class and ask, ‘How am I going to communicate these complex ideas to this crowd of people?’”
Now, as she writes opinions and confers with her fellow justices, “I try to put myself back in that mindset. How am I going to explain it? How am I going to persuade them that this is the right decision in this case? I think a lot about that preparation for teaching when I do that.”
Kagan’s description of the extensive reflection that is part of a justice’s work echoes the accounts that other justices have given in their campus discussions. For example, Justice Sonia Sotomayor in 2011 explained how the justices’ common commitment to the Constitution can soften their disagreements; in 2009, Justice Stephen Breyer discussed how Shakespeare’s plays reinforce his instincts to strike a judicial balance; and Scalia returned in 2012 to reflect on the merits of his originalist approach to constitutional interpretation.
Though Kagan wants to demystify the Court, she’s not ready to put cameras in the courtroom. She agreed with a questioner that cameras would provide important transparency and access to Court proceedings, but she also expressed concern that cameras could change the conversation among justices. “I don’t think Congress is a great advertisement for this,” she said, suggesting that pre-camera Congressional hearings were more substantive and more focused on conversation among those present.
Kagan expressed some openness to looking at international law in deciding U.S. domestic issues, but with limits. “There’s nothing wrong with noticing what Great Britain does and citing that,” she said. “On the other hand, I have a good deal of sympathy with the view that we are not all one big legal system and one big court. We are a particular legal system. Our Constitution is our Constitution, our set of precedents is a distinctively American one.”
These comments made an impression on Melina De Bona, a fourth-year international studies major. She’s currently taking a class on the Constitution and human rights law. “A topic from our class is coming into the real world,” she noted with excitement.
Kagan’s down-to-earth style also made an impression. She related stories of hunting with Justice Antonin Scalia, and lightheartedly explaining to Senator Lindsey Graham the Jewish tradition of going to a Chinese restaurant for dinner on Christmas. Those tales made Kagan seem like “someone we can relate to,” said Maia O’Meara, a third-year public policy major.
Originally published on February 9, 2015.