Graham discusses Brown’s overruling of Plessy, sets up discussion of Roe’s continuation as precedent. Graham: Is it fair to consider scientific advances in fetal understanding/viability? Kagan: Fair to consider scientific advances in every area.

On DADT/Solomon Amendment: Graham: Did other parts of Harvard bar military recruiters? Kagan: Don’t know. (!) Graham: You were making political statement. Kagan: I was trying to ensure military recruitment while applying HLS policy. Not a political statement at all.

On ACOG/partial-birth abortion: Kagan: I had no agenda. Just trying to implement Clinton’s agenda. (Record in fact shows that she pushed Clinton away from his initial position.)

Graham: Identify an activist judge in American history, living or dead. Kagan declines. Activist doesn’t (1) defer to political branches; (2) respect precedent; and (3) decide cases narrowly. (Again, no effort to resolve conflict among 3 elements.)

Graham: Was Thurgood Marshall an activist judge? Kagan: Not going to answer.

Graham: If Israeli judge Aharon Barak isn’t activist, then I don’t know who is. Kagan: Says Barak wrong to say that court can change statute.