Justice Elena Kagan brings an institutionalist message to Monterey.

Federal law, Title 28, Section 333, authorizes the chief judge of federal circuit courts to summon judges annually “for the purpose of considering the business of the courts and advising means of improving the administration of justice within the circuit.”

In the case of the Ninth Circuit of the United States court – which encompasses California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam and the Northern Mariana Islands – that meant hundreds of judges and attorneys gathering from July 21-24 at the Hyatt Regency in Monterey.

It was the first time in 11 years the multi-state group convened locally, and remarks on the last day by United States Supreme Court Justice Elena Kagan drew interest from far and wide; SCOTUS reporters from The Washington Post and Politico traveled to Monterey for a chance to hear a Supreme Court justice speak in a setting other than from the bench.

Over four days, attendees heard about specific legal topics – artificial intelligence and copyright law, legal concerns in the aftermath of catastrophes (such as processing claims through victims’ funds) and the Supreme Court’s decision in Loper Bright Enterprises v. National Marine Fisheries Service, generally granting courts more decision-making authority when government agency officials are interpreting ambiguous statutes. “Loper Bright creates, arguably, a race to the courthouse,” said Abbe R. Gluck from Yale Law School.

That race to the courthouse comes at a time when the judiciary itself is under threat.

In March, President Donald Trump called for impeaching a federal judge who ruled against his deportation plan. Chief Justice John Roberts issued a rare statement rebuking Trump’s comments. “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” Roberts said at the time.

Ah, the old days – when ideas of appropriate were established.

Roberts and Kagan routinely find themselves on opposing sides of rulings, but in her remarks in Monterey, Kagan expressed that she also intends to lean on the institution itself to endure current threats to judicial independence. Without naming names, Kagan noted the emerging notion that government officials don’t need to abide by court decisions they don’t agree with.

“That’s just not the way our system works, not the way rule of law in our country works,” she said. “In the face of these sort of threats, judges just need to do what they are obligated to do: Make reasoned, independent decisions, and not be so aggravated or maddened by any of these threats…

“The way an independent judiciary should counter assaults on an independent judiciary is to act in the sorts of ways that judges are required.”

In essence, she argued for business as usual.

But these are unusual times. With a president who is perfectly happy to set a court decision on fire, the underlying premise that institutions can endure is shaky. Simply believing in the strength of the institution seems insufficient to get us through. Fingers crossed!

Kagan also addressed her frustration with the court’s growing use of the so-called shadow docket, or emergency docket, for urgent cases. “I have expressed a number of times in dissents that we have used it in cases where it shouldn’t have been used,” Kagan said. “My own view is: Be cautious.”

Part of her frustration comes from limited briefing in such cases, and limited written decisions. “Courts are supposed to explain things,” she said. “I don’t mean we should write 50-page magnum opuses. I think one, two or three pages would do.”

Kagan pens dissenting decisions with some regularity, showing where she diverges from the majority view, even if it is personally challenging.

“I find it frustrating, I find it disappointing, I find it sometimes even maddening,” she said. “On the other hand, I like all my colleagues. I think they are all operating in good faith. The most important thing of all is that we are all engaged in a collective endeavor of some importance.”

That is, of course, if the endeavor can survive.

SARA RUBIN is the Weekly’s editor. Reach her at sara@montereycountynow.com.