“Another slow day at the office?”
It was Thursday afternoon and Justice Elena Kagan was preparing for a public hearing at the Library of Congress. She agreed to that long before the Supreme Court scheduled an extraordinary special session this morning to consider whether former President Donald J. Trump should be considered for office again.
The audience laughed knowingly at this opening question from Chief Judge Jeffrey S. Sutton of the U.S. Court of Appeals for the Sixth Circuit. Justice Kagan said the sequence of events had a positive effect.
“It would be impossible to make any news today,” she said, “because everyone would be focused on tomorrow.”
Still, the conversation had insightful moments, not least because Judge Sutton is the author of two books on the role states should play in constitutional lawmaking. Hours earlier, Justice Kagan, however, had scoffed at the idea that Colorado could decide whether Mr. Trump could stay in the primary there.
“The question you have to grapple with,” she told a lawyer for voters challenging Mr. Trump’s electability, “is why a single state should decide who becomes president of the United States,” adding: “The question is whether a former “The president is disqualified for insurrection” to become president again is, you know — just say it — it sounds awfully national to me.”
That statement from a liberal court member, along with skepticism from a majority of the justices, suggested that Mr. Trump would likely prevail in the case and be allowed to vote across the country unless Congress acted.
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 general. He noted that Justice Louis D. Brandeis, whose seat is served by Justice Kagan, has been a proponent of letting states experiment with different approaches.
“Do you think states still have a role to play, or do you think it’s just, ‘That was then and this is now,’ and things are really very different?” he asked.
Judge Kagan, as is her habit, turned the question around and asked what the judge thought. He replied: “It is quite dangerous to nationalize things too quickly, whether through legislation or court decisions.”
When asked for her own opinion, she said: “You know, we had an argument about this this morning. I’m a little afraid to go further.” She acknowledged that states “play a role from time to time, and then the question is at what times.”
Judge Sutton said good-naturedly, “You’re being so evasive.” Judge Kagan responded, “Perhaps we should move on to another question.”
She was more outspoken on less topical but no less pressing issues such as respect for precedent and the value of consensus.
When the law “flips” after personnel changes, she said, “it doesn’t really look like law anymore. It kind of looks like a form of politics.”
“And I think that’s particularly important for this Supreme Court at this time,” she said. “This law should not look like a form of politics in which a whole set of legal rules changes as the composition of the court changes.”
She didn’t address specific cases, but it was a good bet that the court’s 2022 Roe v. Wade being picked up was one of those that was on her mind.
“What was once a right is no longer a right because the court is different,” she said. “I think this is very damaging to the court and very damaging to society.”
She said that judges’ modesty plays a role and that one should not reject the considered views of previous judges just because a new member of the court would approach the issue differently.
“It’s easy to walk onto the pitch and think, ‘Well, what were they thinking?’ And that just has to be wrong. And my perspective is better. And that’s why I’m going to do things my way.’”
The better view, she said, is that “there is a kind of wisdom of the ages.”
“If many different judges have seen something differently, you should ask yourself and then ask yourself again: Are you so sure you got it right? Maybe all the people who thought otherwise – maybe they were right.”
There is much to be learned from the long period following Justice Antonin Scalia’s death in 2016, when the court had only eight members, she said.
“It forces compromise when you don’t believe compromise is possible,” she said. “It actually felt like it forced us to have a conversation that was useful and valuable.”