Kagan on her First Term

August 3rd, 2011

From the Aspen Daily News, we learn that Brown v. EMA was the hardest case for Kagan.

Among one of her most difficult cases, she said, was the constitutionality of the California law that would have banned the sale of violent video games to minors. The court in June struck down the law 7-2 using the First Amendment as the reasoning.

“It was the case where I struggled most and thought most often I’m on the wrong side of it,” she said. “You could see why the government would have wanted to do this and you can see the kind of danger it was worried about, the kind of effects these extremely violent video games have on young people.”

She added it was easy to see what the state was doing and it seemed reasonable.

“But I couldn’t figure out how to square that with our First Amendment precedence and precedence is very important to me,” she said about her vote to invalidate the California law. “I sweated over that mightily.”

Kagan also discussed other cases in the past year that have highlighted the court’s position on the First Amendment.

“I think what you have to say, and people have been saying this, is this is a court that is extremely protective of the First Amendment and extremely protective of speech,” she said. “There is no question the court has a very expansive view of the First Amendment.”

Kagan also seemed amenable to cameras in the court room:

Gerson asked Kagan if the Supreme Court is the least understood branch of government.

She responded by saying that if cameras were allowed in the courtroom, it wouldn’t be.

“I think it’s a good idea,” she said. “This is an unbelievable court to watch, actually.”

Kagan noted how everyone is incredibly smart, prepared and deeply concerned about getting to the right answer.

“If everybody could see this it would make them feel so good about this branch of government and how it operates,” she said. “Reading about it is not the same experience.”

Another cool bit; on her confirmation, the Chief called, and told her they would be serving together for 25 years:

Kagan said the minute after the Senate confirmed her, the first phone call she received was from John Roberts, chief justice of the Supreme Court. He congratulated her and said they’d be serving together for 25 years.

“I said ‘only 25?’” she said to an eruption of laughter. “… I don’t want to say that it’s like you have an incentive to like each other. I think that you can live in an institution happily or you can live in an institution sadly. You can live with people respectfully or you can live with people without that. If you are going to be some place for a long time, boy, it makes you value collegiality.”

On the Court’s collegiality–notwithstanding some contentious opinions:

“I’m not sure it was a surprise surprise but it was, I suppose, how warm everybody is, how collegial the institution is,” she said on Tuesday during the Aspen Institute’s McCloskey Speaker Series during a conversation with moderator Elliot Gerson in the Greenwald Pavilion.

“I guess it comes as a surprise to many people when I talk about my experiences on the court, and to me as well,” she said. “When you read the court decisions and often there are some pretty sharp give and takes, people accusing other justices on the other side of a wide variety of terrible conduct. And you kind of think, like gosh, they must hate each other. The truth is it is completely not so.”

On her role as SG and as a Justice:

“Your job is to try to figure out how to persuade nine Supreme Court justices to take a particular position,” she said about her previous post. “And now my job is to figure out how to persuade eight Supreme Court justices,” she said, prompting laughter from hundreds at the event.

On her dissent in the Arizona public-financing case:

“The majority kept on thinking about this in terms of the language of restrictions and restraints,” she said. “But if you looked at the system and the way it worked, in fact what the [Arizona] Legislature was doing was producing more speech and more electable competition. And that that could not count in anybody’s world as [an injury].”

H/T How Appealing