- Associated Press
Monday, May 1, 2017

INDIANAPOLIS (AP) - The U.S. Supreme Court learned important lessons about consensus building during the year it operated with a vacancy, Justice Elena Kagan said Monday.

Kagan says courts need enough members to cast a tie-breaking vote in order to function properly. But she added that the “silver lining” from functioning without a replacement for the late Justice Antonin Scalia was that it forced justices to listen, reason and persuade.

“We have actually learned to talk to each other, and to deal with each other, and to work together in new and pretty good ways,” Kagan said. “It felt as though we were doing something really quite valuable by keeping on talking and by trying to find common ground.”

Sometimes that led to “silly” outcomes that failed to address pressing legal questions before the Supreme Court, Kagan said. But other times it enabled justices to reach “agreement in places where you might not expect to find it,” she added.

At a time when the country is deeply divided, she says the nation’s court system could set a powerful example by reaching consensus more often.

Kagan’s remarks were made while addressing a gathering of lawyers in Indianapolis, three weeks after Neil Gorsuch joined the court as the first nominee by President Donald Trump.

Gorsuch secured his spot after Republicans refused to hold hearings on former President Barack Obama’s nominee, Merrick Garland, following Scalia’s February 2016 death.

Kagan is a former Harvard Law School dean who has been on the nation’s highest court since 2010 after being nominated by Obama. She is among three women on the nine-member court and is one of its four reliably liberal justices.

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