Elena Kagan: The Supreme Court Adopted Scalia’s Textualist Judicial Reasoning

Supreme Court Justice Elena Kagan said Monday the high court has adopted much of the late Justice Antonin Scalia's textualist judicial reasoning.

Kagan was speaking to an audience at the Chicago-Kent College of Law when she said that Scalia's judicial reasoning has come to dominate the court, the Washington Examiner reported.

Scalia, who sat on the Supreme Court for 30 years before his death in 2016, was a proponent of textualism, a theory in which the interpretation of law is based on the meaning of legal text as it would be commonly understood at the time of its passage, and does not consider other factors like the law's intention when passed.

"In their full context, words mean what they conveyed to reasonable people at the time they were written—with the understanding that general terms may embrace later technological innovations," Scalia and co-author Bryan Garner wrote of textualism in their 2012 book Reading Law.

Kagan explained that she believes the high court has two poles of judicial interpretation—Scalia and his strict textualism on one end, and Justice Stephen Breyer, who emphasizes a law's purpose and its real-world outcomes, on the other.

"I think, for the most part, we are within those poles but much closer to the Scalia pole: That we are a generally, fairly textualist court, which will generally think when the statute is clear you go with the statute," Kagan said. "Pretty much all of us now look at the text first and the text is what matters most."

"And if you can find clarity in the text that's pretty much the end of the ballgame," she continued. "Often texts are not clear, you have to look [farther]."

Former President Barack Obama nominated Kagan to the Supreme Court in 2010 to replace Justice John Paul Stevens. Before being named to the high court, Kagan served as the country's first female solicitor general, the person who represents the U.S. government in cases before the Supreme Court.

Kagan and Scalia had a friendship outside of the court. During her confirmation process, Kagan invited herself to one of Scalia's hunting trips to better understand guns and proponents of the Second Amendment. Scalia took Kagan to his gun club, where she learned gun safety. After she was ready, the two would go on hunting trips that allowed their friendship to grow.

"He was as generous and warm and funny as a person could be. I just so appreciate all the time I got to spend with him," Kagan said six months after Scalia's death. "I miss him a lot."

Sopater said: "... the 2nd Amendment was written to put limits on the power of the federal government, not the individual states. "

After fighting a long, bloody war against a central government that refused to recognize their rights, the Founders perhaps found it hard to envision their own states violating those same rights. To their way of thinking, the U.S. Constitution was not the right place to protect them from their own state government.

Most, I think, of the original thirteen states had a right to keep and bear arms protected by their own state constitutions.

After the Civil War, however, the thirteenth and fourteenth amendments were passed, recognizing that there were certainly some circumstances under which states WOULD fail to protect the rights of its own citizens.

One example of what I am saying was the Dred Scott decision. At the time, slaves were not considered to be part of the people protected by the Bill of Rights, nor were they considered to be citizens of either the United States or of the state within which they were born.

The Dred Scott decision described the situation that would exist if they were to recognize the rights of Dred Scott; "It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."

I post this excerpt to make two significant points.

First, at the time of the Dred Scott decision, it was the U.S. Constitution which was flawed and created the injustice for Dred Scott. It was not the Supreme Court. The flaw was corrected by amendment after the deaths of half a million people in the Civil War.

Second, I would point out the words of the decision; "to keep and bear arms wherever they went". The Supreme Court was recognizing the unalienable right to keep and bear arms and gave no consideration whatever to the idea that any state would disarm its own people.

The coming Civil War would provide even more reason why no state would ever consider disarming its own people. Unfortunately, people in some states today have grown so complacently satisfied with the ever-expanding role of government in people's lives that they today ignore the right to keep and bear arms.

There is an effort being organized to have the People's Republik of Kalifornia secede from the Union. Should that come to pass and a new civil war erupt, one of the first things they will have to do is re-recognize the right of the people to keep and bear arms.

Sopater said: "... but I also don’t believe that the 2nd amendment applies to the states."

The Supreme Court has interpreted the Fourteenth Amendment (a part of the U.S. Constitution deserving of just as much respect as all the rest of it) to guarantee certain things through the "due process" clause.

My own opinion is that they just didn't want to do the obvious which is suggested by this excerpt from the Fourteenth: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;"

I believe that I am in agreement with Justice Thomas when I assert that the "immunities" of United States citizens include an immunity from government infringement of the right to keep and bear arms.

Regardless of my argument, the fact is that the Supreme Court does apply much of the Bill of Rights to the states using the Fourteenth as justification.

Believing otherwise would allow states to disarm former slaves, would it not?

I believe that I am in agreement with Justice Thomas when I assert that the "immunities" of United States citizens include an immunity from government infringement of the right to keep and bear arms.

Regardless of my argument, the fact is that the Supreme Court does apply much of the Bill of Rights to the states using the Fourteenth as justification.

Believing otherwise would allow states to disarm former slaves, would it not?

Are there "former slaves" still around in the states? I'd be surprised if there were.

However, I think I would tend to agree that that is how the 14th amendment is to be interpreted, but I don't think that the 14th amendment can be used as support that the 2nd amendment was intended to be applied to the several states since it was written nearly 100 years after the Bill of Rights was penned.

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