Scalia Won The Long Game, Justice Kagan Says

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Kevin Daley Supreme Court correspondent
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Justice Elena Kagan told a law school audience that the late Justice Antonin Scalia’s preferred mode of judicial interpretation, textualism, has become the dominant method of analysis on the high court.

Speaking Monday night at the Chicago-Kent College of Law in Chicago, Kagan said Scalia’s decades-long advocacy for text-based legal interpretation has prevailed over competing theories.

“[P]retty much all of us now look at the text first and the text is what matters most,” she said of her colleagues on the high court. “And if you can find clarity in the text that’s pretty much the end of the ballgame.”

Kagan explained that the Court’s justices lie on a spectrum between Scalia and Justice Stephen Breyer. Where Scalia emphasized close readings of texts, Breyer emphasizes a law’s purpose when assessing a case and considers the real-world outcomes of possible rulings. Kagan said that, over time, most Supreme Court justices have gravitated toward Scalia’s position.

“I think, for the most part, we are within those poles but much closer to the Scalia pole: That [is] we are a generally, fairly textualist court, which will generally think when the statute is clear you go with the statute.”

The justice has elsewhere said that Scalia never appreciated the extent to which his arguments about legal interpretation have prevailed on the Supreme Court and in the legal profession generally, as he sometimes ruminated on those disputes he lost as opposed to those he won.

Kagan and Scalia were close professionally and personally. Shortly after Scalia’s death, former Obama adviser David Axelrod revealed that the justice privately urged him to push for Kagan’s appointment after Justice David Souter announced his retirement in 2009. Though Justice Sonia Sotomayor would succeed Souter, Kagan was tapped for the next vacancy.

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