Elena Kagan Sounds Pretty Annoyed By the Supreme Court
The "no more cutesy stories about Supreme Court justices" movement earns a powerful ally.
For the most part, Supreme Court justices are usually content to let their work speak for itself. But at a judicial conference in California earlier this week, Justice Elena Kagan took the opportunity to unburden herself, let’s say, of some workplace frustrations with which she’s been dealing of late. And although she didn’t criticize anyone by name, it isn’t especially hard to figure out which of her colleagues are working her last nerve.
Understandably, Kagan’s remarks earned headlines for her support for a more robust set of ethics rules that would be enforced by lower court judges—an attempt to fix the Court’s “code of conduct” that conspicuously does not impose any obligation on any justice to follow it. Kagan acknowledged that putting lower court judges in a position to discipline Supreme Court justices would create “perplexities,” but suggested that this would be less undesirable than a status quo in which no one disciplines Supreme Court justices at all. “The thing that can be criticized is: Rules usually have enforcement mechanisms attached to them, and this set of rules does not,” she said.
For my money, the funnier excerpts of her speech came when she got to participate in the time-honored tradition of grousing about her most annoying coworkers. She criticized the proliferation of concurring opinions in high-profile cases, which, in her view, amount to justices trying to “spin” the result to “pre-decide issues that aren’t properly before the court.” (Looking at you, Brett Kavanaugh.) She argued that courts shouldn’t use cases as “vehicles to advance some broader agenda, or some broader project to change our governance structure or our society.” (Hello, Clarence Thomas.) And she offered a succinct suggestion for lower court judges struggling to parse these cases that get resolved by a blizzard of concurrences: “Ignoring it, basically.”
Interestingly, Kagan also took the time to address one of the dumbest tropes in Supreme Court media: the notion that because the justices are polite to one another, the results in the contentious cases they decide are somehow entitled to the public’s respect. “I get frustrated sometimes when people talk about the collegiality question,” Kagan said, referencing her colleagues’ shared appreciation of things like baseball and golf. “That’s good for the Court, but I can’t imagine why the public should care.”
Of Kagan’s many correct points, this, in my view, is the most correct: Cutesy anecdotes about justices who hang out outside of work serve largely to downplay the real-world consequences of the Court’s decisions, and insulate the justices who make them from well-deserved criticism. A Supreme Court press corps that ignores these stories would do a much better job of informing the public about the real-world impact of the institution’s work. Plus, Nina Totenberg would have to find something else to write her next book about.
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Collegiality? Since that’s not exactly moderating extreme right wing decisions, I pose this Supreme fantasy. Justices SS, EK, KBJ take a walk down the hall, throw open a few doors and all caution to the wind and holler at the top of their lungs…”WTAF, you guys.”