At California conference, Justice Elena Kagan talks life on Supreme Court

SACRAMENTO, Calif. (CN) — Years ago, Elena Kagan sprained her ankle.

Speaking Thursday at the annual Ninth Circuit Judicial Conference, the associate justice of the U.S. Supreme Court recounted the time she’d injured herself while playing basketball. It was an exercise she’d chosen over the all-women workout sessions organized by then-Associate Justice Sandra Day O’Connor, a Ronald Reagan appointee who left the court in 2006 and passed away last year.

Kagan was just a clerk in those days and said she didn’t know O’Connor well. But as she hobbled down a hallway, she crossed paths with O’Connor, the first woman justice on the Supreme Court.

“She said, ‘It wouldn’t have happened in exercise class,’” recalled Kagan, a Barack Obama appointee who joined the high court in 2010.

Kagan brought up the anecdote after being asked about O’Connor’s importance. Calling her “a magnificent justice,” Kagan noted that for decades, O’Connor regularly cast deciding votes in a court that split down the middle.

“She sort of found the right place to be for the court,” Kagan said. “She left the court a better, more respected institution than she found it.”

Today there’s a different court in place, but a certain collegiality remains present. That doesn’t mean it’s on the level of former Associate Justices Ruth Bader Ginsburg and Antonin Scalia, who Kagan said frequented the opera together.

Current justices have lunch together. Some discuss baseball and golf. Such relationship-building makes for a more enjoyable workplace, and those relationships can be important if they lead justices to listen to each other or put themselves in someone else’s shoes when making decisions, Kagan said.

“That’s what you should be aiming for,” she added.

Asked about dissents — as well as quote from Associate Justice Sonia Sotomayor, who in May said she sometimes cries when decisions are handed down — Kagan called herself “more of a wall-slammer.”

No one can always prevail with their decisions, Kagan stressed. Instead, what frustrates her is when she feels that people aren’t playing by the rules of judicial enterprise.

Those rules include respecting precedent, except in unusual cases.

Justices should also refrain from deciding on more than the case before them, she said. Additionally, cases shouldn’t be used to advance a governance structure.

“I think that there have been cases in the last few years where that has happened,” Kagan said — though she didn’t give specific examples.

As for dissents, Kagan said the court misses former Associate Justice Anthony Kennedy, whom she called the civility enforcer. He didn’t use harsh language in his writing, and justices were more likely to listen to him when he asked if they could remove a specific word or sentence.

Kagan pivoted to a question about Loper Bright Enterprises v. Raimondo . The decision last month overturned the Chevron doctrine, which held that courts should defer to agencies when regulatory laws are ambiguous.

Kagan, who dissented, said she remained unsure of the decision’s effects. Joking that she wanted to explain the Chevron doctrine to the three people watching her on C-SPAN, Kagan said courts do all they can to interpret the law. However, she argued that if something remains ambiguous, the agency that has administrative oversight over the relevant statute should resolve existing issues.

Loper Bright changed that, giving more power to the courts to fill in the gaps. Congress could step in and pass legislation to address Loper Bright , Kagan said. Additionally, when Congress specifically delegates authority to an agency, she said the courts must respect that decision.

“If opinions had titles, a good candidate for today’s would be Hubris Squared,” Kagan wrote in her dissent in that case. On Thursday, she told told the conference she’d opted to use a word stronger than hubris.

“Stare decisis" — that is, the principle that judges should rely on established precedent when deciding cases — “is, among other things, a way to remind judges that wisdom often lies in what prior judges have done,” she added. “It is a brake on the urge to convert ‘every new judge’s opinion’ into a new legal rule or regime.”

With Loper Bright , Kagan said the court abandoned stare decisis. At times, old cases need to be overturned. But she argued that good reasons for overturning Chevron , a case 40 years old, weren’t present in Loper Bright .

“There’s a reason why we give deference to agencies,” Kagan said.