Elena Kagan, (High) Court Jester

Supreme Court Justice Elena Kagan began her discussion at a Brooklyn day school last week by acknowledging that she wasn’t able to talk about politics, and that the evening, therefore, was going to be “dull.”

It was anything but, because it turns out that the 58-year-old Upper West Side native could have had a successful career as a stand-up comic.

“You’re extremely funny,” said Dahlia Lithwick after the crowd filling Hannah Senesh Community Day School’s gym-turned-auditorium stopped laughing at Kagan’s description of the famous what-do-Jews-do-on-Christmas exchange she had with Sen. Lindsey Graham during her confirmation hearings.

“I could live another hundred years and I will never say anything that is more known than this,” she said.

In response to Graham’s question about what Members of the Tribe do on Dec. 25, she said: “Like all Jews, I was probably at a Chinese restaurant.”

“He didn’t even understand and was probably wondering: ‘Why was the entire press corps just having [a laughing fit]?’” she said. Much the same was happening as she recalled the exchange last Wednesday night at the Cobble Hill school.

“Then Chuck Schumer decided to explain it,” she continued. “He said, ‘This is what you do, and then you go to the movies.’ And then Senator [Patrick] Leahy sort of repeated it [to another senator, saying:] ‘This is what Sen. Schumer told me.’ There was great knowledge of Judaism [in the Senate] by then.”

During the hour-long discussion between Kagan and Lithwick, a legal reporter for Slate and a Senesh parent, Justice Kagan also touched on more personal Jewish topics; she told about how, although her mother grew up in “an extremely, extremely religious family,” her immediate family members “were the type of Jews who kept a kosher home and went out and ordered shrimp in a Chinese restaurant.” 

Kagan’s parents also synagogue-hopped, with stints at the (then) Conservative (now unaffiliated) B’nai Jeshurun and the Reform Congregation Rodeph Shalom, before landing at the Modern Orthodox Lincoln Square.

When she was nearing 12, in 1973, and discovered the shul didn’t celebrate bat mitzvahs, she set out to change that, eventually coming to a compromise: She held the ceremony on Friday evening instead of Saturday morning, and she chanted from the Book of Ruth instead of the haftorah and Torah portions.

While she was disappointed that she couldn’t read from the Torah, she praised the shul clergy for their open-minded spirit. “I have to say that they came a super-long way even to do that in those days at that sort of synagogue, so I give them a lot of kudos for that,” she said.

Lithwick noted that the two Jewish women justices on the Court both broke Jewish barriers — Kagan breaching the “bar and bat mitzvah Maginot line” and Ruth Bader Ginsberg protesting that she wasn’t allowed to say Kaddish for her mother.

Eventually the talk turned to the Court.

“One of the things that makes the judicial system in this country the marvel that it is, is that people have faith in it, that people view its decisions as legitimate,” Justice Kagan said.

But, she said, “People don’t have to believe in the judiciary … and you can act in such a way that people say: ‘Why are we affording the decisions of this institution such respect?’ … And if we lose that, we’re losing something that is incredibly important to American constitutional Democracy.”

With only eight justices currently serving, the mentality is: “We’re going to find compromise positions and keep talking until we do,” she said. She hopes that mentality will continue even if the Senate approves President Trump’s nomination of Judge Brett Kavanaugh, who is expected to bring the court over to a 5-4 conservative majority.

“You learn things when you open yourself up to different ideas, even if they seem crazy or foreign. … You have to be open yourself to changing your mind [in order to] change anybody else’s.”