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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.”

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  1. 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...

    Posted by: bandanajack | Dec 14, 2012 2:52:12 PM


  2. 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.

    Posted by: MM | Dec 14, 2012 3:24:29 PM


  3. 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.

    Posted by: PAUL B. | Dec 14, 2012 3:32:40 PM


  4. 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.

    Posted by: Stefan | Dec 14, 2012 3:41:57 PM


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

    Posted by: Derrick from Philly | Dec 14, 2012 3:45:28 PM


  6. 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.)

    Posted by: bookish | Dec 14, 2012 4:40:59 PM


  7. 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.

    Posted by: Frank Butterfield | Dec 14, 2012 4:43:34 PM


  8. 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.

    Posted by: Mommie Dammit | Dec 14, 2012 5:05:44 PM


  9. "@Matt...we choose our 'friends' based on common interests and belief systems among other things."
    Exactly.

    "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.

    Posted by: EchtKultig | Dec 14, 2012 5:39:05 PM


  10. 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.

    Posted by: Hue-Man | Dec 14, 2012 9:18:18 PM


  11. 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.

    Posted by: Robb | Dec 14, 2012 9:44:41 PM


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

    Posted by: Markt | Dec 14, 2012 10:52:39 PM


  13. 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.

    Posted by: Honest Abe | Dec 14, 2012 11:14:00 PM


  14. 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.

    Posted by: anon | Dec 15, 2012 10:48:30 AM


  15. 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.

    Posted by: Fu'ad | Dec 15, 2012 11:06:07 AM


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

    Posted by: Bollux | Dec 15, 2012 11:19:08 AM


  17. 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.

    Posted by: AdamK | Dec 15, 2012 1:27:16 PM


  18. 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.

    Posted by: DC Arnold | Dec 15, 2012 9:24:51 PM


  19. 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.

    Posted by: Kenneth | Dec 16, 2012 9:37:37 AM


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