SPOKANE, Wash. — Supreme Court justices are aware of how decisions made along partisan lines can damage the credibility of the institution, Justice Elena Kagan said Thursday at a judicial conference in Washington state.
“It’s bad for the court and the judiciary if people think all the decisions are up for grabs depending on who is sitting on the court,” Kagan said.
She said it was actually easier to reach consensus when the court was divided 4-4 after the death of Justice Antonin Scalia.
“When you go 4-4, we did more work,” Kagan said. “How do we break the tie?”
That’s tougher to do when conservatives hold a 5-4 majority, she said.
Kagan also said the justices share differing views on the importance of precedent in deciding legal cases.
“We spend a lot of time on the court discussing the degree to which precedent ought to control,” Kagan said. “We are on a kind of spectrum.”
While precedent should at times be overruled, “it should be done super carefully. Precedent is crucial to the rule of law.”
She recalled clerking for Justice Thurgood Marshall in 1988. “He was the greatest lawyer of the 20th Century,” she said.
“He said, ‘Use what you have been given for something good in the world,'” Kagan recalled.
This has been a busy week for Kagan, who spoke at a memorial Monday in Washington, D.C., for Justice John Paul Stevens, who died last week at the age of 99.
“He was a hero to me,” Kagan said of Stevens. “He was extremely independent minded.”
“Everybody thought: What a man; what a judge; what a life he led,” she said.