PI Original Ellyn Fortino Monday February 2nd, 2015, 2:55pm

Justice Kagan Discusses Inner Workings Of U.S. Supreme Court In Chicago (VIDEO)

Progress Illinois provides highlights from U.S. Supreme Court Justice Elena Kagan's talk at the University of Chicago's Institute of Politics on Monday morning.

A day after a brutal snow storm hit Chicago, U.S. Supreme Court Justice Elena Kagan swept into town Monday to discuss her life and shed light on the high court's inner workings at an event sponsored by the University of Chicago's Institute of Politics (IOP).

The morning discussion was moderated by IOP Director David Axelrod, who asked Kagan how the nine justices relate to one another on divided issues and whether there "is a sense of caucuses" on the court.

Kagan, who joined the Supreme Court in 2010, responded that there is "remarkably little sense" of teams or caucuses on the court, explaining that, "I think we try not to do anything that would suggest that."

"We don't meet in those kinds of ways," she told a full house at the university's Mandel Hall. "The only time we meet as groups is when we meet as an entire group, which doesn't mean that there aren't some one-on-one conversations happening around the building, but I think everybody tries really hard not to try to have that feel of there are groups, or teams, or caucuses or what have you."

The justices, she said, also "try really hard" to listen to and learn from one another.

"We are divided on some important issues, but remarkably two-thirds of the time last year we agreed 9-0," noted Kagan, a former U of C Law School professor and U.S. solicitor general. "Now, you know, that's unbelievable because all of these cases that we're doing are hard cases."

The U.S. Supreme Court, Kagan said, hears arguments on only about 80 cases out of some 10,000 petitions it receives each year. The court typically decides to hear a case when there are conflicting lower court rulings and when it's crucial to have uniformity in the law, the justice said. But sometimes, Kagan said, "We take cases that just have to be taken" regardless of lower court disagreements, because it involves an "important legal issue, and in the end the Supreme Court should decide this."

She said the process by which justices decide the cases they will hear is "very collegial" and "very cooperative."

Some upcoming high-profile cases the Supreme Court will consider this term involve same-sex marriage and Affordable Care Act subsidies, among others.

Axelrod asked Kagan, the fourth female Supreme Court justice, about the lack of diversity on the court in terms of educational background.

"I don't think it's an issue for some of the reasons people think," Kagan said of the Ivy League representation on the court. As far as the overall issue of gender, racial and other forms of diversity on the court, Kagan said that "doesn't affect decision making in very many cases."

"There are occasional ones where it might," she said. "But for the most part, having a diverse court on any of those metrics is not all that important for actual decision making."

That being said, Kagan stressed that it is a "good thing to have our governmental institutions be ones that people feel ... as though the government institutions are connected with them in some real way."

Later in the talk, an audience member brought up the ban on cameras in Supreme Court chambers, saying the policy prevents many Americans from understanding how the institution works. Kagan, who said there are strong arguments on both sides of the debate, said allowing cameras in the court could disrupt "the dynamic of the institution."

"If you sort of look at different experiences when cameras come into a place, the nature of the conversation often changes," Kagan said. "Honestly, I don't think Congress is a great advertisement for this. I don't mean that in the way they work generally, but it used to be that Congress would do hearings without cameras and I've got to say, I think that those hearings probably sounded a lot different than they do now."

Kagan does not expect to see cameras allowed in the courtroom anytime soon.

"I think this will not happen right now," the justice said. "I think that there are ways in which we can become more open to the public, and I think we'll continue to explore those ways, and I don't think that this is one of those kinds of, you know, 'over my dead body' issues. You know, I think people will continue to think about it and will continue to explore it. But this is not a kind of 'Oh, and tomorrow I'll go back to the court and we'll have another discussion about this and change our minds.'"

Here's more from Kagan on the court's no camera policy, courtsey of the IOP:

Kagan was asked about her process of interpreting the U.S. Constitution. It is "no mystery," Kagan said, that she is "not one of the people labeled as 'originalists' on the court."

Rather, Kagan said she takes a more "holistic" approach when it comes to making legal decisions. The justice said she considers what the constitutional framers envisioned, how a "particular constitutional provision has operated and has worked in our society," as well as precedent, the latter of which she called an "extremely important part of constitutional decision making."

"The reason that makes sense to me is because if you just look at what the framers thought, you get a set of results that I think that our society would not be willing to live with," Kagan said. "Brown v. Board [of Education] would not have been decided by the court in the way that Brown v. Board was decided if all the court had asked was, 'Well, back in 1868 did the the framers of the 14th Amendment envision segregated schools?' And the answers was, 'Yes, of course they envisioned segregated schools and of course that they thought the 14th Amendment actually had nothing to do with that.'

"But they had a broader vision too," she continued. "And it was a vision that sort of worked itself out over time in such a way that when Brown v. Board was presented to the board, it was the absolutely correct thing and almost unimaginable for it to be decided otherwise."

Audience members raised a few questions about whether Supreme Court justices should consider the "real-world" implications associated with their decisions and the legal issues before them.

"It would be utterly the wrong thing to do to say, 'How do I think the statute should have been written? You know, I think it would be a good statute if it did this, or I don't agree with this statute so I'm going to interpret it some other way,'" Kagan said. "That would be, in my view, inconsistent with my oath of office and inconsistent with the very idea of being a judge ... Congress gets to make up the laws and that our job is to interpret those laws as best and as fairly as we can, irrespective of whether we think that some statute that Congress passed is a good one or bad one."

Kagan later noted that "there's something about living in a society which affects the way judges understand the law, the statutes, the constitution. And so it's not isolated from the world."

"But at the same time, nobody, I mean nobody, really cares, honestly, whether the editoral page of the Washington Post is going to give the thumbs up or thumbs down to your latest decision," the justice explained. "It's just not relevant to what we do."

Another attendee brought up the problem of income inequality, asking Kagan whether economic equality is necessary for a functioning Democracy and if she takes the issue into account during her decision-making process.

"I'm going to say something that may sound harsh, and I don't mean it to sound harsh, but ... it's not my job," said the justice.

"Unless you can reduce [income inequality] to a particular legal question for me, my view of this is that's an incredibly important question for the president," Congress and U.S. citizens to contemplate, Kagan said, adding that her opinions on the issue are "personal and private thoughts that I would try never to let interfere with the way I judge."

"You have to know what hat you're wearing," she stressed. "And the hat I'm wearing is a judge's hat." 

Kagan is scheduled to speak at a second U of C discussion later this afternoon with David Strauss, former assistant to the solicitor general, and university law school students.

Image: U of C Institute of Politics.


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