Hours After Trump Argument, Cautious Reflections From Justice Kagan

“Another slow day at the office?”

It was Thursday afternoon, and Justice Elena Kagan was settling in for a public conversation at the Library of Congress. She had agreed to it long before the Supreme Court scheduled an extraordinary special session for 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, 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 an upside.

“It would be impossible to make any news today,” she said, “because everybody would be focused on the morning.”

Still, the conversation had telling moments, not least because Judge Sutton is the author of two books on the role states should play in making constitutional law. Hours earlier, Justice Kagan had, by contrast, scoffed at the idea that Colorado should be able to decide whether Mr. Trump could remain on the primary ballot there.

“The question that you have to confront,” she told a lawyer for voters challenging Mr. Trump’s eligibility, “is why a single state should decide who gets to be president of the United States,” adding: “This question of whether a former president is disqualified for insurrection to be president again is, you know — just say it — it sounds awfully 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 was likely to prevail in the case and would be allowed to stay on the ballot around the nation unless Congress acted.

Judge Sutton, whose books bear the subtitles “States as Laboratories of Constitutional Experimentation” and “States and the Making of American Constitutional Law,” pursued the question of state power in a general way. He noted that Justice Louis D. Brandeis, whose seat Justice Kagan occupies, had been a proponent of letting states experiment with different approaches.

“Do you think there’s still a role for the states to play, or do you think it’s just ‘that was then and this is now,’ and things are really quite a bit different?” he asked.

Justice Kagan, as is her habit, turned the question around, asking what the judge thought. He responded, “It’s pretty dangerous to nationalize things too quickly, whether through legislation or court decisions.”

Asked for her own views, she said: “You know, we had an argument about this this morning. I’m a little fearful of going further.” She did allow that there is a role for states “from time to time, and then the question is what times.”

Judge Sutton, in a good-natured way, said, “You’re so evasive.” Justice Kagan responded that “maybe we should go on to a different question.”

She was more forthcoming on less topical but no less urgent subjects like respect for precedent and the value of consensus.

When the law “flip-flops” after changes in personnel, she said, “it doesn’t really look like law anymore. It kind of looks like a form of politics.”

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

She did not single out particular cases, but it was a good bet that the court’s 2022 decision overturning Roe v. Wade was among the ones on her mind.

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

She said there was a role for judicial humility, for not rejecting the considered views of earlier justices simply because a new member of the court would approach the question differently.

“It’s easy to kind of get on the court and think, ‘Well, what were they thinking? And that’s just got to be wrong. And my perspective is better. And so I’m going to do things my way.’”

The better view, she said, is that “there’s a kind of wisdom of the ages.”

“If a lot of different judges have seen something differently, you should, you know, ask yourself and then ask yourself again, are you so sure that you have it right? Maybe all those people who thought something different — maybe they were right.”

There was much to be learned, she said, from the long stretch after Justice Antonin Scalia’s death in 2016 when the court had just eight members.

“It forces compromise where you don’t think compromise is possible,” she said. “It actually felt as though it forced us to have a conversation that was useful and valuable.”