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Scalia, Kagan: Common Ground Often Trumps Ideology

Monday, 15 Dec 2014 04:52 PM

One is a sharp-tongued, self-described "wise guy" originalist, who believes the Constitution means today what it meant when it was first written.

The other is a diplomatic former Harvard Law School dean who believes there must be "flexibility" in interpreting the nation's governing document.

Although they are often at odds with each other in written opinions, U.S. Supreme Court Justices Antonin Scalia and Elena Kagan were full of warm praise for each other Monday, saying that their common ground often overrides their ideological differences on the nation's high court.

"We have a really collegial court," Kagan told an audience of about 900 people at a forum organized by the University of Mississippi School of Law. "Sometimes you like people you agree with and sometimes you don't. Sometimes you like people you disagree with and sometimes you don't."

Scalia, as is his style, put a sharper point on it.

"If you can't disagree on the law without taking it personally, find another day job," he said. "You shouldn't be an appellate judge."

Kagan and Scalia have built a relationship in part around hunting, with Scalia introducing her to guns. Kagan said during a talk at Princeton University in November that she and Scalia would come to Mississippi in December, in part, to hunt ducks.

Though Scalia, who has spoken frequently in Mississippi, sometimes talks about cases, Monday's event, moderated by law school Associate Dean Jack Nowlin, steered away from questions about particular issues. Both Scalia and Kagan declined to answer a question about what they considered the court's biggest mistake in recent years.

Kagan, who's been on the court since 2010, said "my least favorite part is losing." But she also said writing dissents is "fun," going on to praise Scalia's dissent in a 1988 case where every other justice on the court voted to uphold the law permitting independent prosecutors.

Scalia, for his part, said that he hates "good losers."

"I used to play tennis with a guy who was such a good loser that it was hardly worth beating him," he said.

Scalia said his least favorite part of the court was deciding which cases to hear.

"The only mistake you can make is to take a case that you shouldn't have taken, because you've wasted time. If you turn down a case and it's a really significant issue of federal law on which the courts below are in disagreement, it'll be back next year."

Despite the blizzard of written briefs that high profile cases can bring, what lawyers say to them in the courtroom matters.

"It's rare that oral argument changes my mind. It is frequent that oral argument makes up my mind," Scalia said, explaining that lawyers who hit their case's strong points can often confirm his original take on an issue.

Scalia, the longest serving justice with 28 years on the court, said his legacy will be "textualism" — interpreting a text fairly — and originalism — interpreting the Constitution according to the meaning understood when a provision was adopted.

Kagan praised Scalia for the discipline that originalism brings to analysis. And even as her colleague squirmed in his chair, she said she believed that framers left some things open to later interpretation.

"To build a Constitution that really truly can last over time, there has to be some kind of flexibility in the joints," Kagan said.

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One is a sharp-tongued, self-described wise guy originalist, who believes the Constitution means today what it meant when it was first written.
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2014-52-15
 

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