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August 3, 2011
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Justice Kagan speaks of life on the highest court

ASPEN - Instead of revisiting the many details and nuances of Supreme Court cases she's dealt with over the past year, Justice Elena Kagan took a more conversational tone in Aspen on Tuesday, focusing on what it's like to be a member of the highest court in the United States.

Kagan, an Obama appointee who was sworn in a year ago this month, said one thing that has impressed her about the court is its friendly atmosphere. That's an aspect of the court that surprises many people, given the fact that many justices are chosen based on their partisan ideologies.

"I think this comes as a surprise to many people when I talk about my experiences on the court, and to me as well," Kagan said during a conversation in the Greenwald Pavilion at the Aspen Institute. "You know you read the court's decisions, and often there's some pretty sharp give-and-take: people accusing other justices on the other side [of the issue] of a wide variety of terrible conduct."

"The truth is, it is an incredibly collegial and warm institution, with good friendships throughout the court and across whatever people think of as ideological divides, and that was the nicest feature of joining the court, was feeling that," she said. "And how well and respectfully the members of the institution operate together."

Elliot Gerson, the institute's executive vice president for policy and public programs interviewed the newest member of the Supreme Court. The visit to Aspen, her first ever, was arranged as part of The Aspen Institute's McCloskey Speaker Series. The Greenwald tent was filled nearly to capacity for Kagan's remarks, despite a steady rain.

Gerson noted that "across the street" from the Supreme Court - a reference to Congress, which for the last few months has been engaged in bitter fighting over the federal government's debt ceiling - partisanship is alive and well.

He suggested the reason why the Supreme Court justices enjoy a different atmosphere is because so much of the work involves thoughtful writing of majority and minority opinions based on legal precedent and sound constitutional arguments.

"I haven't thought about that," Kagan said. "Sometimes the writing makes you think, 'How could they really like each other?' It's not, for the most part, sound bites. It's reasoned argumentation."

Kagan, a native of New York City, is one of three women sitting on the nine-member court and only the fourth female justice in Supreme Court history: "I think it's kind of great that that has happened and I'm glad to be a part of it," she said.

Before joining the court, Kagan served as U.S. solicitor general, having been appointed to that position by Obama shortly after he took office in January 2009. He nominated her to a Supreme Court vacancy in May 2010 after Justice John Paul Stevens announced his pending retirement. Senate deliberations over Kagan were relatively uneventful, lacking the controversy of Obama's nomination of Sonia Sotomayor a year earlier.

She also served in the Clinton administration in a variety of roles before joining Harvard Law School in 1999 as a visiting professor; she became dean of the school in 2003. Her Supreme Court appointment last year marked the first time since 1972 that a nominee with no prior experience as a judge ascended to the highest court.

Kagan spoke of her prior job as solicitor general, who is the chief attorney representing the United States at the Supreme Court. Gerson asked her how that experience - and having argued six cases before the high court - helped her during her first term as a Supreme Court justice.

"One thing, it gave me a lot more sympathy with the people on the other side," she said, drawing laughter from the crowd. "I share this with a few of my colleagues; a number of them have argued before the court."

Gerson pointed out that the recent Supreme Court term featured a variety of First Amendment cases. In a few of them, the majority voted against "First Amendment expansion," but for different reasons, Kagan said.

"This is a court that is extremely protective of the First Amendment and free speech," she said.

One case dealt with Arizona's public-financing system for political candidates. The system allowed public money to be used to support campaigns that could not compete with other campaigns that were receiving more money through private donors. The intent of the system was to decrease political corruption by allowing office-seekers without large amounts of money to run a more competitive campaign, Kagan said.

The Supreme Court's majority ruled that the system of providing public "matching funds" to lesser-financed candidates was a "restraint of speech," because the privately financed candidate would be burdened by knowing that the publicly financed candidate was going to get enough money to wage a campaign.

Kagan dissented.

"The majority kept on thinking about this in terms of the language of restrictions and restraints," she said. "But if you looked at the system and the way it worked, in fact what the [Arizona] Legislature was doing was producing more speech and more electable competition. And that that could not count in anybody's world as [an injury]."

Gerson then read a direct passage from Kagan's dissenting opinion, full of wit, which drew laughter from the Aspen crowd.

The quote: "Against all this, the majority claims to have found three smoking guns that reveal the state's true and nefarious attention to level the playing field. But the only smoke here is the majority's, and is the kind that goes with mirrors."

asalvail@aspentimes.com


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The Aspen Times Updated Aug 3, 2011 01:30AM Published Aug 3, 2011 01:28AM Copyright 2011 The Aspen Times. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.