Hours after the Trump argument: Judge Kagan's tentative reflections

“Another quiet day at the office?”

It was Thursday afternoon and Judge Elena Kagan was getting ready a public conversation in the Library of Congress. She had agreed well before the Supreme Court was scheduled to schedule an extraordinary special session that morning to hear arguments over whether former President Donald J. Trump is eligible to hold office again.

The audience laughed knowingly at this opening question Chief Judge Jeffrey S. Sutton of the United States Court of Appeals for the Sixth Circuit. Judge Kagan said there was an advantage to the sequence of events.

“It would be impossible to report news today,” she said, “because everyone would be focused on the morning.”

Yet the conversation had telling moments, not least because Judge Sutton is one too the author by two books about the role that states should play in making constitutional law. Hours earlier, Judge Kagan, on the other hand, had scoffed at the idea that Colorado should be able to decide whether Trump could remain there in the primaries.

“The question you have to answer,” she says said a lawyer for voters questioning Trump's eligibility, “the reason why a single state should decide who becomes president of the United States,” adding, “The question of whether a former president is disqualified from insurrection to run for president again to become, you know – just say it – it sounds terribly national to me.”

That statement from one of the court's liberal members, along with skepticism from a majority of the justices, suggested that Mr. Trump would likely prevail in the case and would be allowed to remain on the ballot nationwide unless Congress intervenes.

Judge Sutton, whose books are subtitled “States as Laboratories of Constitutional Experimentation” and “States and the Making of American Constitutional Law,” examined the question of state power in a general sense. He noticed that Judge Louis D. Brandeiswhose seat Justice Kagan holds, was a proponent of letting states experiment with different approaches.

“Do you think there's still a role for the states, or do you think it's just 'that was then and this is now,' and things really look very different?” he asked.

Judge Kagan, as is her custom, turned the question around and asked what the judge thought. He replied: “It's quite dangerous to nationalize things too quickly, either through legislation or court decisions.”

Asked for her own opinion, she said: “You know, we had an argument about this this morning. I'm a little scared to move on.” She did admit that there is a role for states 'from time to time', but the question is at what times.

Judge Sutton said in a good-natured manner, “You're so evasive.” Judge Kagan responded: “Maybe we should move on to another question.”

She was more outspoken on less topical, but no less urgent, topics such as respect for precedents and the value of consensus.

If the law “flip-flops” after personnel changes, she said, “it doesn't really look like the law anymore. It's a bit like a form of politics.”

“And I think that's especially important for this Supreme Court at this time,” she said. “That law should not look like a form of politics in which, just because the composition of the court changes, a whole series of legal rules changes along with it.”

She didn't mention any specific cases, but it was a good guess that the court's 2022 decision overturning Roe v. Wade was one of the cases on her mind.

“What was once a right is no longer a right because the court is different,” she said. “I think that is very damaging to the court, very damaging to society.”

She said there is a role for judicial humility, for not rejecting the considered positions of previous justices simply because a new member of the court would approach the issue differently.

“It's easy to get on the field and think, 'Well, what were they thinking? And that must simply be wrong. And my perspective is better. And so I'm going to do things my way. ''

The better insight, she said, is that “there is a kind of wisdom for the ages.”

“If many different judges have seen something different, you have to ask yourself the question and then ask yourself again: are you so sure you're right? Maybe all those people who thought differently were right.”

According to her, there is much to learn from the long period after the death of Justice Antonin Scalia in 2016, when the court only had eight members.

“It forces compromises where you think no compromises are possible,” she said. “It actually felt like it forced us to have a conversation that was useful and valuable.”