On Sept. 12 Justice Elena Kagan spoke at Hannah Senesh Community Day School in Brooklyn, interviewed by journalist Dahlia Lithwick. Steven Mazie, Supreme Court correspondent for The Economist, covered the speech on Twitter and a print account by Rob Abruzzese at the Brooklyn Daily Eagle confirms the same general points. From Mazie’s account, slightly edited for readability:
KAGAN: People viewing the judiciary as legitimate is part of the “marvel” of the third branch of government.
But that’s fragile. People can lose that faith in “unelected, pretty old” justices. If we lose that, we’re losing something incredibly important to American constitutional democracy.
This is a dangerous time for the court, because people see us as an extension of the political process. “It’s dangerous if in big cases, divisions follow ineluctably from political decisions.”
You have to try as hard as you can to find ways to avoid 5-4 decisions “by taking big questions and making them small.” Recently, we’ve had good practice in that. During 8-member court, we had to try hard to avoid 4-4s and find consensus. Sometimes it had a ridiculous air to it, “since we left the big thing that had to be decided out there.”
We kept on talking until we achieved consensus, and CJ Roberts gets huge credit for that.
I cited this passage Monday at Cato’s Constitution Day as going far to explain several cases this past term in which Kagan took an important role, including Masterpiece Cakeshop (where she and Justice Stephen Breyer joined conservatives in deciding the case on different grounds than those most strenuously contested), Lucia v. SEC (in which she wrote for the court to decide a structural question on administrative law judges narrowly while sidestepping contentious issues of separation of powers and presidential authority) and above all in the partisan gerrymandering cases (decided unanimously without addressing the principal merits, and with a Kagan-authored concurrence on behalf of the four liberals).