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

Elena Kagan / Getty Images

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.

Kagan said the court as a whole is much closer to Scalia's viewpoint.

"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."