Kagan Praises Scalia, Says Wisdom Required in ‘Disruptive’ Cases

SCOTUS Justice Elena Kagan gives an interview to Politico:

Elena_kaganSaying she genuinely “loves” her colleagues, Kagan praised her frequent intellectual opponent, Justice Antonin Scalia – with whom she revealed she spent three days hunting in Wyoming this fall. Asked to discuss how she interprets the language in laws the justices consider, Kagan credited Scalia with changing the direction of the court.

“This is in some ways a testament to one of my colleagues, to Justice Scalia, because if you look back 30 years ago … there was much less attention paid to the words Congress used to write a statute,” Kagan said. “One of the terrific things he has done is to make people engage with the words that Congress actually used, because that’s what they thought about and that’s what they actually passed.”

In what may have been a reference to upcoming cases such as two on gay marriage that the justices this month agreed to hear, Kagan was asked what role public opinion plays in the justices’ opinions.
                                                                                                           “Well, I don’t think any of us make our decisions by reading polls,” Kagan said. “One’s sense of what to do as a judge is bounded in some way by the society in which one lives” and the political process of getting appointed, she said.

Still, the justice said, “One does think long and hard as a judge — and I’m not sure I’ve ever been in this position –… before you do something that you think is required by law that would be incredibly disruptive to society, and that’s where great wisdom is called for.”


  1. says

    Sorry but I just lost much respect for Kagan. The fact that she picked up a gun and went hunting with Scalia is appalling and incredibly disturbing. HOW do we get these kinds of people on the Supreme Court?

  2. CD in DC says

    liked her a lot better when she recused herself on everything, she’s peoplepleaser for sure, just not sure which people.

  3. Gus says

    “before you do something that you think is required by law that would be incredibly disruptive to society”

    Not counting my chickens…

  4. Matt says

    Oh dear. How to read this. It’s incredibly naive of her to say such things about Scalia; his intentions are not the least bit noble or what have you. Now, she’s up in the air, isn’t she? By the way, the justice who wrote the disgusting majority opinion in Bowers was elected by JFK. So now the difference between liberal and conservative judges is becoming extremely murky, especially in this most precarious time.

  5. Sargon Bighorn says

    “Disruptive to society” like when little Black children and little White children were allowed to sit in the same class room? That disruptive? The ENTIRE state of Virginia shut down ALL it’s schools in response. Kagan, don’t let the Virginia’s of America frighten you when it comes to equality under the law.

  6. Brad says

    My respect for Elena Kagan just went down about 20 knotches. If she really feels this way then she’s an idiot.

  7. KT says

    So should we be confident the four “liberals” on the Court are going to be on our side? Ginsberg has already expressed her concerned about bringing social cases to the court too quickly (i.e. Roe v. Wade). Do we have to worry about Kagan as well?

  8. Esther Blodgett says

    Considering there has probably been at least one gay member of the Supreme Court every year since about 1990, the Court had better tread very lightly with this issue.

    If you need to ask “who?”, just go over the 12-14 or so members in that time. If it looks like a duck, walks like a duck and sounds like a duck, its a duck.

  9. Esther Blodgett says

    Considering there has probably been at least one gay member of the Supreme Court every year since about 1990, the Court had better tread very lightly with this issue.

    If you need to ask “who?”, just go over the 12-14 or so members in that time. If it looks like a duck, walks like a duck and sounds like a duck, its a duck.

  10. Caliban says


    F*ck her. The truth is that marriage equality is only as “disruptive” as people make it, usually based on their book of myths. When gay couples get married do these paranoiacs feel a ‘disturbance in the force,’ a lessening of belief in their own vows or love for their spouse, or ANY qualitative or quantitative change. No. Not a f*cking thing happens, and not ONE of their doom and gloom prophecies have come to pass.

  11. Richard says

    Why is Kagan congratulating this sloppy-mouthed bigot, of all people, for getting people to “engage with words?” She could find a much worthier ass to kiss. The justices are all too cozy and self-satisfied in their little black robes.

  12. Marc Sweet says

    Please go to CHANGE.ORG and sign the petition to Justice Scalia to recuse himself from the two marriage cases before the Court. His personal bias will cloud his decision.

    Thank you.

  13. G.I. Joe says

    Interesting how one moment a judge can’t base their decisions on polls, but the other moment a judge has to be concerned over making a “disruptive” decision.

    “I ignore pro-gay polls, but I vote anti-gay because there are so many anti-gay people!”

  14. matt says

    yes, how dare she try to like the other 8 people on the court with her. how appalling. They should all hate each other based on how their views differ. how dare she go hunting with him or have friends at work – horrid. how dare ginsburg be friends with him (anyone remember the picture of her on the back of an elephant with him?)

    chill out. you know she’s going to rule in favor of gay marriage. is it really that horrible that she (and for that matter all the justices) don’t want to hate their lives, so they make friends with each other, since well, you know, they’re kind of on that bench for LIFE.

    Also, I’d agree with her about the benefit of textualism that Scalia has brought to the court. I don’t care for him as a justice, but he did do this, which is nice.

  15. Joseph L says

    Judging from the nonsensical comments above, did you people actually READ the article? It says: (1) Kagan is frequently the intellectual opponent of Scalia, and (2) she said that as a judge you have to think before doing something disruptive. She wasn’t necessarily talking about gay marriage (nor does the article state that she was talking about gay marriage).

    I think in a professional setting you can respect someone who is a colleague and be friendly on a personal level while completely disagreeing with their opinions. You really expect her to say “Scalia is a self-righteous homophobic jerk who needs to lay off the twinkies” and go in the next day to work with the guy? Come on.

    And on the whole hunting thing… again, come on. They weren’t out shooting humans, or downing endangered species for sport. Where do you think your food comes from? Chicken breast trees and beef bushes?

  16. Mary says

    By claiming that justices think long and hard before doing anything that might be “disruptive to society” Kagan may be trying to signal to the public that the justices are not going to mandate gay marriage in all 50 states. She probably knows that the issue will continue to get heated – as pro-SSM people anticipate a possible historic victory, and anti-SSM people try to use this as a recruiting tool. Also, she may be trying to discourage an anti-Scalia campaign on the part of gay activists, fearing that it will only harm the gay rights cause. I’m assuming that she’s doing what she considers to be the right thing. It could be something like a Sister Souljah moment. She’s shrewd enough to understand that the gay rights movement doesn’t have to like her for her to be doing them good. I’d cut her some slack.

    Just speculating here…..

  17. PAUL B. says

    And another one bites the dust! She’s clearly speaking more as a politician than a judge…and if she had half the “hairy bag of beans” that Scalia has, she would call him what he is…nasty,disgusting and bigoted.

  18. Lymis says

    I don’t know her well enough to parse something like this, and I’m sure not going to defend her on no information, but at the same time, “needing to think long and hard” isn’t quite the same thing as “refusing to do what it takes when it’s the right answer.”

    Fact is, having the Supreme Court make the transparently obvious ruling that gay people are actually people, and citizens with rights, and that we don’t live in a vacuum so things that are “fundamental rights” and “the very foundation of civil society” and “beyond the reach of government” for straight people need to be the same for us as well, is in fact going to be hugely disruptive.

    I don’t mind having the Supreme Court think long and hard on that, especially so that they take the time to do it right and make the rulings ironclad and legally unassailable.

    And, as much as it sucks, if the incremental approach serves to nail this down more firmly than a sweeping change, that might be the right answer. For this cycle to result in the end of DOMA, Prop 8 struck down for California, and a statement that civil unions aren’t adequate when rights are given, that’s progress. The gold standard would be a recognized suspect class status and a clear statement that the 14th Amendment applies to LGBT citizens, but I’m not expecting that.

  19. PAUL B. says

    @Matt…we choose our “friends” based on common interests and belief systems among other things. I don’t have “friends” that consider me an abomination even if they happen to agree with me about gun control. I can tolerate someone I work with and be civil…but don’t call them a “friend”. Sorry…I’m not desperate enough to befriend someone that considers me hellbound & perverted.

  20. bandanajack says

    clarence thomas is a worse justice that scalia, and abe fortas is in the running as well. and those are just those i know of…

  21. MM says

    I suspect Kagan chose her words very carefully. Maybe she doesn’t consider marriage equality disruptive to society at all. Maybe thats the irony in her statement. You all assumed she meant that marriage quality was disruptive. Have faith. This is a woman who threw the US government off of Harvard’s campus due to their discriminatory laws against gays. As for her friendship with Scalia.. that I can’t understand for the life of me. Except that apparently Ginsberg is also good friends with him. Confusing.

  22. PAUL B. says

    It’s easy to see the charm in Scalia…but plenty of serial killers were charming. Is he educated…yes. Is he witty…yes. If you watched Charlie Rose interview him a couple of weeks ago…you can see the attraction. But right below the surface is the face of bigotry and self-righteousness. So many psychopaths possess charm & wit…just before they rip your heart out with their teeth.

  23. Stefan says

    Matt and Joseph L. have it right, and a lot of you sure seem ready to overreact. She never said that Scalia is right about gay marriage, and she never said that she agrees with his rhetoric. Everything in her background suggests she would rule favorably in the gay marriage cases. As for crediting him with advancing textualism–that really has little bearing on the gay marriage cases. Those cases won’t revolve around statutory interpretation, and jurisprudence regarding the 14th and 5th Amendments has long moved past a textualist/interpretivist debate.

    If you consider Kagan’s comments in light of the politics of the Court, she has an obvious interest in retaining lines of communication with Scalia. If I had an a**hole as a colleague, I’d try pretty hard to stay friendly with him, because it’s better to know your enemies. And praising his “textualism” is a pretty innocuous way to do that. We also have to remember that a lot of SCOTUS cases have nothing to do with social issues, and that Scalia might be an ally to Kagan on some of these.

  24. Derrick from Philly says

    Maybe she considers the Defense of Marriage Act disruptive to society and unconstitutional.

  25. bookish says

    Paying attention to the words actually used seems kinda basic to me, but then I’m no SC scholar. Maybe it was a revelation to them.

    The original writers of the Constitution made it amendable specifically because they knew they could not write for every future case. Original intent only goes so far.

    (Too bad they both came back from the hunt.)

  26. Frank Butterfield says

    My first thought about the disruptive issue was about Roe v Wade.

    And it’s easy to lob grenades from a distance but she does have to work with the man.

    Plus now we know that Scalia knows at least two gay people: his son and Kagan.

  27. says

    The problem with Scalia’s “textualism” and “originalism” is that it only applies to those cases that are against his interests – in other words, against the interests of his corporate masters.
    You want proof? Go read his dissenting opinion in Lawrence v. Texas where he eviscerates Sandra Day O’Connor for “creating” a new constitutional right for individuals to have privacy in their own home and to be treated equally under the law.
    Now go read his concurring opinion in Citizens United v. F.E.C. Scalia does gymnastics that would put a Chinese Olympic athlete to shame to create “personhood” for corporations, by the reasoning that corporations are made up of individual humans and therefor entitled to the same rights.
    The fact is that Scalia is the embodiment of why Constitutions are a very dangerous way to frame government. Extremists with a desire for power will take that document and use it to crush opposition and dissent. They insist “THE LETTER OF THE LAW MUST BE OBEYED” but then twist themselves into Gordian knots to avoid accountability to that same law.
    Scalia should NEVER have been put on that bench, but the weakling Democrats were too afraid of another battle after having taken lots of lumps to get Renquist approved so they let the criminal Reagan and his boot-licking Republican majority railroad Scalia through committee and then through the Senate with no questions asked.

  28. EchtKultig says

    “@Matt…we choose our ‘friends’ based on common interests and belief systems among other things.”

    “By claiming that justices think long and hard before doing anything that might be “disruptive to society” Kagan may be trying to signal to the public that the justices are not going to mandate gay marriage in all 50 states.”
    I wouldn’t bet my life but I am almost CERTAIN that is what she is doing. This is most assuredly not a random unplanned media soundbite.
    I was too pessimistic about the election and referendums. But I really think the best we can hope for is that DOMA will be overturned. I’m not even sure about that.

  29. Hue-Man says

    She must be thinking of the total disruption of the American war department resulting from DADT repeal. Absolutely everything – including the destruction of the nation – that the anti-gay bigots predicted has come to pass. The successful equal marriage votes last month will have even more disastrous consequences – they’ll probably cause the end of the world on December 21st.

  30. Robb says

    Personally, I appreciate her telling it like it is. She’s not wrong about it being disruptive, and it’s okay to talk about that publicly. We have too few politicians who will be frank when asked about issues. It’s always easier to deal with these issues when you know what you’re up against, and, to me, her statement was neutral, so I’ll take that over the venomous attacks coming from other quarters any day.

  31. Markt says

    Kagan hunting with Scalia? Lesbian’s save animals. Apparently he likes strong Jewish women. But then so do most gay guys.

  32. Honest Abe says

    I agree with everyone who said they lost respect for her. You can maintain a cordial relationship with a co-worker but to claim you are friends with a bigoted, homophobic moron like Scalia who doesn’t know the constitution is hypocricy. Scalia uses what he is told by the pope, cardinals, bishops and priests of his church to base his decisions. Apprently he doesn’t know about the first amendment, part of the Bill of Rights and thinks this should be a catholic country. I had a couple I was friends with for thirty years. However, they have gone completely “tea bagger” and now vote for anything with an “R” after thier name, inluding the governor here in Florida who was fined $300,000 for Medicare fraud. They agree with “Legitimate Rape Akin” and “God’s Intent Murdoch”, plus told me that they didn’t think gays should “marry” denying thier supposed friend 1,138 rights they get by saying “I do.” So, after 30 some years, I have severed all contact. No one should be friends with someone who is a hateful person.

  33. anon says

    Considering all the gay rumors that swirl around her (and Souter before her), she’s probably more sensitive than most to gay issues.

    Mandatory retirement by age 75 for justices would be a good reform to consider. It’s implausible that a justice can maintain his or her faculties at the level required much beyond that, even with the help of many clerks.

    There are several aspects to the court system that make it routinely disappointing for making society change. If you look at civil rights, victories in the fifties and sixties came 80 years after losses in the 1870’s and 1880’s. That shows you how slow progress through the courts can be.

    Aside from the few truly controversial cases, there are plenty of other cases that the justices decide that allow for a lot of agreement, and this is probably what she is talking about–the non-controversial cases that mostly involve strict legal interpretation. It’s the details of the decision handed down that really matter, helping to clarify the law and set good precedent.

  34. Fu'ad says

    Scalia is remarkable in what he lacks in judicial temperament. He’s an abomination, and I cannot wait until he is off the SCOTUS.

    Maybe Kagan is giving us an example of that keep your friends close and your enemies closer adage.

    Btw, I took what she said as meaning that it would be “disruptive” to rule against marriage equality.

  35. Bollux says

    I don’t trust any woman who is 52, unmarried, plays softball and sympathizes with that fat, ignorant Scalia bastard.

  36. AdamK says

    You people are reading way too much into her comments. She’s being collegial and trying to get along with a man she has to work closely with. Of course she’s not going to criticize him in public.

    She may just as much be hinting that homophobia is what’s “disruptive.” She may feel it’s “disruptive to society” for the government to treat a class of people unequally. Or she may not be referring to the issue of marriage equality at all.

    Give her the benefit of the doubt and chill.

  37. DC Arnold says

    Turns out the Latina is not so smart after all, 73%, 53%, whatever is NOT disruptive when it agrees with us that we deserve equality. Glad when the old ones die off.

  38. Kenneth says

    Apparently, few of you have heard the term “you catch more flies with honey.” Perhaps, if you calm your hysterics and step away from your high horses for a moment, you’ll consider the possibility that she is forging an ally. Much of the progress that has been made recently, has been made through recognition. By being open to our straight family and friends, by showing them we are not so different, they have turned the corner and changed their perceptions. We haven’t achieved the progress we have made thus far on our own, it has taken many straight allies.