U.S. Supreme Court Justice Elena Kagan. Credit: Diego M. Radzinschi / ALM

Life tenure for U.S. Supreme Court justices is a good thing, Elena Kagan said Wednesday, but she also sees possible merit in switching to 18-year terms so that “no single nomination would be a life or death thing.”

While debate over term limits and other reforms for the Supreme Court has ramped up recently, justices have generally steered clear of the discussion.

Kagan spoke before an audience at Georgetown University Law Center to celebrate the 10th anniversary of the National Celebration of Pro Bono sponsored by the American Bar Association’s Standing Committee on Pro Bono and Public Service. ABA President Robert Carlson asked Kagan questions about pro bono service and other topics.

“I’m pretty happy with it,” Kagan said with a smile, referring to life tenure. It was built into the Constitution, she added, to “make us independent” by making sure that justices don’t color their decision-making to please a future employer. “We won’t have a next job. We won’t need anything from anybody,” she said.

Kagan wondered aloud whether an 18-year term for justices would provide the same independence as life tenure. “Maybe,” she said, adding that an 18-year term might “take the high stakes out of the confirmation process.”

Asked about the perceived politicization of the Supreme Court, another hot topic surrounding the justices, Kagan said the court still enjoys a legitimacy and credibility that the court “has to be very careful to protect.” People who accuse the court of being political may not “understand what we do,” she said, pointing to the fact that most of the court’s rulings are unanimous or decided by lopsided votes.

But because of differing judicial philosophies, Kagan said that in a small number of cases, the court does its “5-4 thing,” with the votes reflecting “the party of the president who nominated us.” When that happens, she said, “It’s not partisan, but you can see how people would look at that and say, ‘what’s going on here.’” She added, “Every single one of us should think about that.”

Kagan extolled the importance of pro bono work for all lawyers, whether they go into private practice or public service. “There are all kinds of ways to help the pubic, serve the public,” she said, urging students not to over-program their careers from the start. In her own career, Kagan said her best jobs were the result of unexpected opportunities placed before her, and most were in public service.

“Don’t plan so much,” Kagan said. “Be alert to serendipity.”

Kagan drew laughter when Carlson asked her whether she is recognized when she is out in the public. The justice said that when she first joined the court, after the highly public confirmation process, she was often spotted and asked for selfies. “I don’t think the selfie is a good invention,” she said.

But that notoriety has faded, according to Kagan. Not long ago, while she was dining at a restaurant, someone approached Kagan and said, “It is such an honor to meet you, Justice Ginsburg.” Kagan told the Georgetown audience, “We’re not all Justice Ginsburg! We can’t all be Justice Ginsburg!”

 

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