U.S. Supreme Court Justice Elena Kagan: 'There Are Always Bumps In The Road'

The nine judges of the United States Supreme Court have no armies, no police, and no budgetary authority at their disposal. But nevertheless, for more than two centuries, the court has been the undisputed watchdog of the U.S. Constitution. That role has often forced judges to stand toe-to-toe with powerful American presidents -- from Thomas Jefferson to Barack Obama -- striking down laws and executive actions that exceed their constitutional authority.

How did the U.S. Supreme Court establish and preserve its independent role? And are there any lessons that can be derived from this experience for countries struggling to establish the rule of law and independent judiciaries?

In an exclusive interview at RFE/RL's Prague headquarters, correspondent Brian Whitmore spoke with U.S. Supreme Court Justice Elena Kagan about these issues. Prior to taking her lifetime seat on the Supreme Court in 2010, Kagan served as solicitor-general in the Obama administration and as dean of the Harvard Law School.

RFE/RL: Let's start with the very basics. Many of the countries RFE/RL broadcasts to are trying -- with varying degrees of success -- to develop independent judiciaries. Some say they are, but really aren't. Some are sincerely trying to, but have thus far been unsuccessful. And a rare few have been fairly successful. How did an independent judiciary really develop in the United States? What were the main bumps in the road? Are there lessons from the early years of the republic that would be useful for countries currently struggling to form independent judiciaries? Was it the brilliance of the founders, like we're taught in civics class, or did we just get lucky?

Elena Kagan: Well, we did get lucky. But we also had people who demonstrated enormous skill and wisdom in order to get to the point we're at now. And we're not perfect either, and there are always bumps in the road, and there's always more that can be done to establish a rule-of-law system and an independent judiciary.

But we had a number of factors working in our favor in the United States, and not every country has this. And so the lessons that you can draw from country to country are real, but they are limited. You can draw some lessons, but every country's experience is going to be different because every country's traditions and history is different.

But in the United States, even before the revolution, there was a very strong commitment to judicial systems and to the rule of law. This was part of the heritage the United States inherited from England and its common-law system. And in the revolutionary period there was a great deal of influence on some structural matters that have been integral to an independent judiciary. There was the separation of powers, so the judiciary stood separate from both the legislature and the executive. There was also a real commitment in the founding period -- the revolution and the development of our constitution -- to federalism, so it wasn't all about the national government. It was about the states; individual states had extensive powers as well. So that meant that there were real checks and balances built into our government that facilitated the development of an independent judiciary.

And finally, we had some very wise leaders at the start of our history. This includes someone most nonlawyers don't know about. Everybody knows about [Presidents] Thomas Jefferson and James Madison. But the person who really founded, if you will, our judicial system, founded the concept of judicial review of executive and legislative action, was a very early chief justice named John Marshall, who served as the chief justice of the United States Supreme Court for several decades (1801-1835) and who, more than any single person in the United States, managed to ensure that the courts were an important and independent player in the American governmental process.

RFE/RL: Can you point to some important formative experiences in the early years of U.S. history that established an independent judiciary?

Kagan: Well, I think that people think the most formative experience was a judicial case that started out as a very unimportant judicial case. It's called Marbury v. Madison and it was a case that John Marshall really used to establish the principle that a court could invalidate legislative or executive action if that action infringed on the constitution. That was a new and revolutionary concept.

Our constitution itself does not set forth a system of judicial review. There is no provision of our constitution that says the courts will have the power to invalidate executive or legislative action that violates the constitution. So John Marshall really had to create that power for himself. And he used this case of Marbury v. Madison, a case that involved whether the proper judicial commission was given to a man named Mr. Marbury by Thomas Jefferson. And John Marshall said it was not, but he did it in a very clever way that established the principle but at the same time was not too threatening to President Jefferson and, indeed, gave President Jefferson part of what he wanted. From that moment, the system of judicial review was never really questioned in American history.

(Editor's Note: Marbury v. Madison was a landmark ruling in 1803 that established the Supreme Court's power to overturn actions by the executive and legislative branch.)

RFE/RL: Did this have more to do with the American political culture or institutions?

Kagan: Well, culture and institutions are related. And certainly there was something in the political culture that allowed John Marshall to do what he did, which was to say that somebody has to be the supreme guardian of the constitution and that role falls to the courts. It falls to the courts to say when Congress or the executive branch -- in our case, the president -- violates the constitution.

You can imagine that there were many people who were not so happy about that principle, who thought that the courts had no special role in this area and that the Congress and the president were as good as the courts were in determining what did and didn't violate the constitution. Marshall said there had to be somebody who ultimately sets the rules of the road and determines when the constitution is violated, and that falls to the courts.

And, as I said, there have been plenty of times when actors questioned that, including heroes of American history. Abraham Lincoln was never a great fan of judicial review. But for the most part, it has stuck as an important part of our political system. In the end the courts get to say whether Congress or the president have exceeded their powers.

RFE/RL: So this was a pivotal moment. The history of the United States could have gone down a different path if not for Marbury v. Madison?

Kagan: I'm sure that is true. But at the same time, it's important to say that courts only gain respect, and their judgments are only acceded to, if they use their powers wisely. So judicial restraint is a very significant part of judicial review. Just as the courts can say when the executive or legislative branches have overstepped their powers, the courts have to ensure that they don't overstep their own powers. The system only works if the courts don't unwisely or unduly step on the prerogatives of the other players in the government.

RFE/RL: The problems of the judiciary in most of the countries we broadcast to are remarkably similar. I wanted to go through some of them and get you to address them. Were there ever similar issues in U.S. history? If so, how were they addressed? If not, as a legal scholar, how do you think they might be addressed? First, there is the issue of what the Russians call "telephone justice." In theory, this means that in all important cases, the judge hearing the case gets a phone call from the executive branch or its proxy spelling out how he or she is supposed to rule. How do you build an independent judiciary in societies where this is common practice?

Kagan: If we did [have such issues], those would have been understood as abuses of the system and violative of the rules of the system. That is the very opposite of a system founded on the rule of law, which says the way a judge decides a case, the way a court decides a case, is by virtue of legal principle, not by virtue of legal power, by who called him and said this is how we want the case to turn out.

The independence of a judiciary can in some sense be measured by its ability and willingness to challenge the powers that be and say they've overstepped their role and to hold them to account, not to accede to everything that the powers that be want.

RFE/RL: In many countries, the judiciary -- and the legislature for that matter – are little more than a de facto cosmetic appendage of the executive, where all decisions are made. So how do you establish judicial independence when it is the executive that really has power?

Kagan: That is one of the great mysteries of an independent judiciary and it depends so much on the culture of the system. One of our early presidents (Andrew Jackson) was also not sure he liked the courts very much. In a very famous ruling, he said: "Well, the court has ruled, so now let them enforce it." And the idea there was that he was not going to lift a finger to enforce the court's judgment. In fact, he was going to do everything possible to prevent the court's judgment from going into effect and from having meaning.

And after all, the court doesn't have the power of an army. It doesn't have the power of the purse. So, it's always a question: How is a court's judgment going to have meaning? And it only does if the other actors in the system and if the people at large respect its judgments and understand that even if they disagree with something, that the system only works if those judgments are going to be enforced.

(Editor's Note: Kagan is referring to the case of Worcester v. Georgia, an 1832 case involving the sovereign rights of Indian tribes over their tribal lands. President Andrew Jackson refused to comply with the ruling, but it nevertheless became a precedent in future cases on Indian rights.)

RFE/RL: So how did that case play out?

Kagan: You know, it played out pretty well for the courts. There was a little bit of threatening, but in the end the court got its way.

RFE/RL: Another problem that is related to the problem of "telephone justice" is that of selective justice. In some of the countries we broadcast to, people are prosecuted because they have become inconvenient to the powers that be, while others act with impunity. How can an honest judge operate in such a system?

Kagan: The first thing your question points to is that a good rule-of-law system depends on honest judges, but it also depends on honest prosecutors -- people who don't play the kind of political games you're talking about. It also depends on having legal rules that to some extent prevent that from happening. So to the extent that legal rules are clear and hard to manipulate, it makes that kind of selective prosecution less likely to happen.

To the extent that they are vague and easy to manipulate, selective prosecution can more frequently happen. So one answer is to have legal rules that are clear rather than vague and that are not subject to manipulation. Now, not everything can be clear in a legal system, and there is some opportunity to decide whether a legal rule applies to one person or circumstance and not another. There can be ethical rules for prosecutors and judges about not applying law selectively or because of who is in power or who paid you. Applying it in the same way for all people is critical.

RFE/RL: Another problem that vexes many of the countries in our broadcast area is the paradox of transitional justice. This is one that tends to appear in countries that are trying to establish independent judiciaries. When democratic revolutions succeed and a regime or a system changes, some say it is necessary to clean out the judiciary, which is tainted by serving an authoritarian government. But doing so sets precedent that can be abused by future governments. There is also the problem that new judges tend to be inexperienced. How should the judicial branch behave in a transitional period?

Kagan: I'm not sure U.S. history is very good on this subject. But I think there are a lot of places around the world that have experienced this set of difficulties over the past decades. And probably what these places show is that it all depends. Circumstances can differ dramatically and in some places it makes sense to keep some from the old regime to lend their experience and expertise. In other places, not so much. So it's not a one-size-fits-all solution for this problem. But there is a good deal of experience from different parts of the world when a country gets to this point.

RFE/RL: Finally, there is a problem known as "the corruption feature." In many countries, corruption is not a "bug in the system," so to speak, it is a "feature." The laws are vague by design and, therefore, anybody who the regime finds inconvenient can be prosecuted. Official graft, within limits, is actually encouraged, which means that officials who do not remain loyal can be prosecuted at any time. How can a judiciary even begin to tackle this problem?

Kagan: It's hard for judges to be honest when the entire society around them is full of corruption. I'm not sure I know of a country where the rest of the government was corrupt but not the judiciary.

RFE/RL: So the solution can't start with the judiciary?

Kagan: I think it can try to go hand in hand. But it is hard to imagine a judiciary that somehow manages to remain incorrupt when everything around them is filled with corruption. The judiciary is not going to be the solver of this problem on its own.

RFE/RL: So the judiciary can’t be an engine of change in this regard?

Kagan: I think it can be an engine, but certainly it is hard to know how the judiciary can do it without help.

RFE/RL: Do you think appointing or electing judges is more conducive to establishing judicial independence?

Kagan: Well, this is one where different parts of the United States have established different systems. The entire federal judiciary is appointed. But in our state systems, many of our states have elected judiciaries. And there is something to be said on either side. Elections give people a stake in the judiciary and keep the judiciary closer, in fact, to the populace. But just by virtue of that, they are more corruptible. In the American system, some people think it is good to vote on judges who decide important matters but who worry that the elections that produce those judges are easily manipulated by powerful actors in the system.

RFE/RL: One feature that is largely absent in countries that lack judicial independence is jury trials. Can the establishment of jury trials help the cause of judicial independence?

Kagan: I think a rule-of-law system and an independent judiciary can exist with or without jury trials. I don't think jury trials are the key to the system. I think you can prove that by looking at the American example as compared to the British example. We came out of the British system, but [unlike the British] adopted jury trials in order to correct certain abuses that the colonists thought were true of the British system. But the British system really never did and one would be hard-pressed to say that is not a rule-of-law system.

Juries are useful for some things. Maybe they are not the best way of approaching other legal problems. Whether a country decides to use juries or not, either way you can create an independent judiciary and rule-of-law system.

RFE/RL: Why did the Americans take up a jury system?

Kagan: I think there were the colonists [during British rule] who thought that royal judges treated them unfairly. The idea was to have a jury of your peers decide on a case rather than a royal [judge] connected to a country thousands of miles away across an ocean. People thought we want to be judged by people next door and not people who are dependent on a king who is many moons away.

Now there are lots of independent judiciaries and rule-of-law systems that think most cases are not properly decided by juries and who do very well without a jury system.

RFE/RL: Anything else you might want to say to people struggling to establish independent judiciaries?

Kagan: Just that it's hard, but it's worth it. This is a long process. It's a process that in no country is over. We can all improve. There are always bumps in the road and problems that have to be dealt with. But continuing to strive for a system that is marked by the rule of law and an independent judiciary is something that serves a society very well. The freedom, prosperity, and stability of a society really all depends on that.