Transcripts For CSPAN3 Supreme Court Justice Elena Kagan Remarks On The American Legal System 20240713

My name is matt schera, director of under graduate ppe program. Its honored to be the host of Roger Wilkins lectures. So whats the connection between our pbe program and these lectures . Im glad you asked. As director, i spend a fair amount of time explaining what it is and what makes Masons Program unique i can go on. Really, i can go on. But today im going to go straight to the bottom line. It exists to serve highly motivated students who want to help create Better Solutions for the difficult and pressing problems that arise in the public life of a complex society. The problems that arise and persist in what Roger Wilkins, in the first chapter of his autobiography, had called with immense understatement, complicated times, such as our own today. Approximate. Pe offers an opportunity for students to build meaningful careers in civil service, journalism, business and the law and other socially engaged fields and endeavor. In this regard its my hope that generations of students will set their sights on the examples set by Roger Wilkins life and career. Again, we couldnt be prouder of our association with this legacy. I have three brief Program Notes to make before turning over the podium. The first is youre going to be able to find an archive of this event as well as past wilkins lectures and future lectures and more information at our website ppe. Gmu. Edu. The second is please, during the event, dont take pictures or videos out of consideration for those around you and up on the stage. Third and final note is at the conclusion of this event im going to ask you all to hold your seats and were going to allow Justice Kagan to leave first and we can all follow out after her. Without further ado, its my pleasure to introduce the president of george mason university, president ann ho holten. [ applause ] thank you, professor scherer. Thank you all. What a great crowd. Its a delight to see you all here today. I invite you to join me by extending a warm welcome to Justice Kagan. Were thrilled to have you here, action toes excellence. Were so proud of george mason. One of the things were proud about here at george mason is that we can offer our students opportunities like this, to hear from you today. We are here for the Second Annual Roger Wilkins lecture. We like to think Roger Wilkins had a lot of roles in his life. His most Important Role was his 19 years of service here at george mason university, mentoring and fostering the growth of young minds and young lives as robinson professor of American History and culture, robinson Professor Program honors our most distinguished professors and we have a number of robinson professors in the room if you all could give us a wave. Thank you all for being here. He did do a few other things in his life. Top leadership role at the department of justice in the 1960s where he helped president kennedy and then president johnson pass the amazing important civil rights acts of that era. He was at the Washington Post and then New York Times in editorial roles, at Washington Post during the watergate era and wrote some of the important editorials and shared in the Pulitzer Prize that the post team won for that work. Were excited to honor him today through this continuing lecture series. Were so excited to have Justice Kagan here with us today. She and i have a number of things in common that you may not know. We shared our undergraduate and graduate alma maters. Princeton grads. She wrote the princetonnian which i read. She was on the law review, which i didnt read at harvard. But then we went on to have a significant overlap in our professional lives as well. I was a judge on the juvenile and Domestic Relations District Court for the city of richmond, literally the baby court in every way, and she, as you know, is a justice on the highest court in the land. Even though those courts are quite different, there are some significant overlaps, and they are both all about the rule of law. You know, judges get all excited about the rule of law. And not everybody quite understands that all the time. But the fundamental part, the fundamental essence of the rule of law is the principle that all rule that the rules apply equally to everybody. So it is fundamentally about equality. And when you travel in other countries, as ive had occasion to do in life, where the rule of law doesnt apply, where courts, where there isnt an independent functioning judiciary, where people in certain parties or groups dont have to comply with the rules that others have to comply with, you remember what this the importance of this thing that we take for granted here in our system, the rule of law. One of the consequences of having an independent judiciary system, as we do, is that judges cant always well, they cant speak freely to defend their positions. And they sometimes have to take unpopular positions because the rule of law so dictates. And yet they can only speak through their opinions. Therefore, it makes it extra special to have an opportunity to hear from Justice Kagan here in an academic setting where we can hear more about how the whole system works. Im very, very excited to hear her conversation today. Before i turn the mic over, i want to acknowledge we have professor wilkins wife, patricia, here with us, who is retired from her role as professor at Georgetown Law School and served in many, many other Important Roles as well. His daughter, amy, is with us. Also a great advocate, especially an advocate for children and families in all kinds of important opportunities and most especially im delighted that we are here, we have a chance to welcome his daughter, elizabeth, who will be following me on stage in a minute. Elizabeth is the senior counsel to carl racine, a yale well, well forgive her undergrad and law grad. Most importantly here today, she had an opportunity to clerk for Merrick Garland and then Justice Kagan at the court. The law clerk judge relationship is a very, very important one, partly because judges are so isolated. Your clerks are your family. They are your window into the world. And i know that elizabeth is thrilled to be here with Justice Kagan and vice versa. With that, ill hand off to elizabeth wilkins. [ applause ] good afternoon. And thank you, president holton, for that introduction. It is a real pleasure to be here today, speaking at the lecture that honors our dad and also introducing my former boss and mentor. It feels fitting to me that we are, in a sense, bringing together the two intellectual giants who dedicated their careers to public service. Above all else, our dad taught to us, our students and anyone who would listen or read that we each have a fundamental civic duty to make our country better. He brought all of his considerable talents and intellectual fire to bear on major justice of his lifetime using whatever position or power he had in service of those who had less. He did that most elegantly with his pen, writing time and again calls to arms against the evils he saw around him. Justice kagan, in her term, has spent her career putting her enormous talents to work for the good. I remember when i was interviewing to clerk for her she noted that i had worked for the obama administration. Mind you at a time when i was not much older than many of the people in this room, and she asked me one pointed question about that experience. What was the most important thing that you did for your country . To be clear, i was like 24 at the time that i was working in the obama administration, so i felt a little overwhelmed by trying to answer this question, but thats Justice Kagan. She has high expectations. There are, in her court, no wallflowers, no waiting around. You better be showing up and getting things done, no matter what your position is. That certainly has been Justice Kagans m. O. Throughout her career, born and raised new yorker, Justice Kagan attended princeton, harvard, serving as a law clerk and then to Justice Thurgood marshall. University of chicago law school, she was then asked to come into the Clinton Administration first as associate white house counsel, then domestic policy adviser. She went back to harvard law as a professor but quickly became dean where she is widely accredited for institutional reforms. President obama then appointed Justice Kagan to be the first female solicitor general of the United States and quickly followed up by appointing her to the Supreme Court. Two less wellknown but nevertheless very important achievements, she was the dean who brought free coffee to harvard law and she was also the justice who brought frozen yogurt to the Supreme Court, which i appreciated very much. In all seriousness, i was extremely fortunate to have clerked for a person like Justice Kagan. If my father taught me to you to become passionately to service, her chambers taught me diligence to Service Necessary to give it your all. I will never forget biking to work before 4 00 a. M. While the moon was still high but i will never forget to make your responsibilities so seriously to turn over every stone and pursue every line until you are sure you have gotten things right. Like our dad, justice k a. Gan is known for the power of her pen and watching her wrestle every sentence, every word into place to construct the most succinct argument possible was astounding to see. Her commitment to writing accessible, forceful and exceeding exceedingly we are all lucky to have her. This afternoon, Justice Kagan will be in conversation with steve pearlstein, professor perfectlystei pearlstein. He has been the driving force behind these lectures honor mieg dad. Like our dad, he is a professor here at george mason and like our dad, he is a semi reformed journalist. He started out as a tv reporter and even started his own political magazine before coming down here to work at the Washington Post. Won a pulitzer for coming on crisis before starting here at gmu in 2011 where his dedication to his students, the institution and to learning is ever evident. I look forward to a great conversation. Thank you. [ applause ] good afternoon. I dont know whether any of you saw that elizabeth has great red shoes. So next year im going to wear my red shoes. Thank you all for being here and thanks to you, Justice Kagan. Its an honor. It really is an honor. I mean, first off, i do everything that elizabeth asks me to do or tells me to do. But this one was a really special privilege and treat, just because, you know, i never had the opportunity to meet Roger Wilkins, but i feel as though i know him some through his daughter, and through his wife, and he was just such a superb educator and journalist and lawyer. And most of all a public servant. And its great to see you carrying on his legacy, elizabeth, and its great to be here for this event. So there are a lot of undergraduates here and some law students here. This is a very diverse campus. People from all sorts of countries, all walks of life, all classes. But they all have one thing in common. They are all a mass of anxiety about their careers. Chill out. So chill out. [ laughter ] so lets talk about careers, particularly yours. Harvard law school, two clerkships, law professor, white house dean, solicitor general. Was there a grand plan . Did you plan that whole thing out . Yeah, it was all written down when i was about 20 or something. No, thats a joke. Come on. When you were in high school, you actually appeared in your High School Yearbook wearing a gown and holding a gavel. Was that just coincidence . It was just coincidence. A bunch of us had raided the costume closet of the drama department. But i really had no idea i was going even to go to law school before basically the year before i went to law school. And i guess my view of the way things have turned out is that most of it was serendipity and unplanned. And these days college students, law students, they tend to plan too much. And the best advice you can give people the planning some is good and important, but is really just to keep your eyes open to opportunities that just might pop up. Because i think most of life happens that way. Its just things come about that you never would have expected, and the only thing that you have to know how to do is how to grab those opportunities when they do arise. And figure out the good ones from the not so good ones. You had some setbacks. At one point you were nominated to the dc circuit by president clinton and, as sometimes happens, you didnt really get a hearing or a vote. At one point you were a candidate to be president of harvard. Tell us about how those disappointments if you had got those jobs, you might not be sitting here today. So how should we think about those kinds of disappointments . Well, those are highclass disappointments, i have to say. [ laughter ] i also had some less highclass disappointments. The funny thing about these somebody looks at a resume and it has all these great jobs and it doesnt have all the jobs you didnt get. So there were plenty of jobs i didnt get along the way that i thought i wanted. But i dont know, i think what i tended to discover and the example that you gave about my dc circuit judgeship is actually a good example of that. Is that when a door closes some place, a window opens. And that might be magical thinking, but its happened to me often enough that i really believe it. And sometimes the biggest disappointments are the best things thats ever happened or could happen to you. And that was true, for example, of the judgeship. I was nominated to be a judge when i was 39. So i would have been very young and i would have spent really my entire life on the court. And i love the work i do, but when i look back on it, i think, you know, instead, i had a decade where i did many other things, where i developed lots of different sorts of skills. Now i am a judge. So i get that, too. So it was really a good thing, i think, that happened that i had an opportunity to explore some things i never would have had a chance to, had that come about in the way i thought i wanted. Can you convince yourself of that at the time, or is that hard to convince yourself. Its probably hard to convince yourself of it at the time and then something happens and you think that worked out all right. I went back to teach and i love teaching. Ive always loved it. And then just a few years after that, i had the opportunity to become dn of harvard and i learned so much in that role. I learned how to do so many things that i never would have you know, it requires you to be a person that i had didnt really expect myself to be and to develop all kinds of different skills. And it was a really very steep learning curve, which are the jobs that i like, are the jobs that require you to learn all kinds of new things. And it was a great decade before i got to where i am now. So lets talk about the law. What did you learn about the law and about judging from Justice Marshall, and i should say you were one of the last clerks. Roger wilkins, i think his first job out of law school was working for Thurgood Marshall for the Legal Defense fund. So the line goes from roger from marshall to roger to you to elizabeth. And i hope beyond. So what did you learn from Justice Marshall about the law and about judging . You know, mostly what you learn from Justice Marshall was how people can advance justice. And i dont think anybody has ever done so much of it as he has. I mean, i view him as the greatest lawyer of the 20th century, in part because he did the most justice in his time. And in part because he was just a great lawyer. He was miraculously skilled at all kinds of different things. You know, you dont see lawyers like this anymore, people who were great trial lawyers, people who were great appellate lawyers. He did criminal cases, he did civil cases. One day he was arguing before the Supreme Court and the next day he was on a train down to some small segregated down in the deep south where, you know, he was fighting to defend somebody for a lot of the cases he did were Death Penalty cases in front of allwhite juries, where it was hard to win cases. And everything he did, whether it was the big cases, the kind of brown v. Board, developing that entire strategy, and whether it was the small cases making sure that individual defendants, not so small individual defendants, got the justice they deserved. Everything he did was all about bringing justice to this country, and in particular to the africanamerican community, but to the whole country. And he was a great story teller and he told stories about his life. I clerked for him in one of his last years and i think by that point he was not in the best of health. I think he knew that he didnt have all that much time left, and he would look back sometimes on his life. So we would go into his chambers and do all the usual things that clerk and judges do and we would talk about the cases, and then at some point he would segue into storytelling mode and we would hear about his childhood and segregated baltimore and we would hear about his time at howard law school, really developing with Charles Hamilton houston, the dean of the law school, the strategy that lead to brown v. Board and led to the eradication of jim crow. And we would hear about all his many cases. And he never repeated a story and he had hundreds of them. And it was a lesson in American History and it was a lesson in american law. And it was a lesson, most of all, in how one person can do justice. And, you know, nobody is ever going to be Thurgood Marshall, and probably nobody in this room is ever going to be Thurgood Marshall, but still you can take away lessons about your own life and about what makes something worthwhile and about the kind of goals that you ought to set for yourself and about the kind of good that people can do. Anything about judging or being a justice that you learned from him that perhaps now you can see more clearly how that you are one . Well, you know, there are different times and were different people and i would never say that im the same kind of judge as he was. Its just different times, different circumstances, different personalities. But i suppose one thing that i really appreciated at the time was the way he treated his clerks. I mean, he was a taskmaster, too. I say too, because you can tell from elizabeths conversation that im kind of one. But he really you know, you never didnt know who was boss in that chambers. He had a couple of sayings that made you remember that. One was sometimes you would say to him, oh, well, you have to do this in this kind of 26yearold way, you have to vote this way or you have to join this opinion or Something Like that. And he would say there are only two things that i have to do, stay black and die. [ laughter ] and sometimes you would Say Something and he would say, you see that commission over there . And it was the commission with linden johnsons name on it making him a Supreme Court justice, and he would literally make us sort of get out of the chair and walk over to that commission and repeat which name was on that commission. [ laughter ] but at the same time, he really respected his clerks and he thought that we were people who were going to do great things, and the interaction that he had with all of us is something i think none of us will ever forget. And i dont have the stories that he has and nobody should treat me the way people treated Thurgood Marshall, but i like to think of that when i talk to my own clerks. Marshall aside, is there some justice in history thats not on the court today, thats not marshall, that is your model, and if so, why . I guess lewis brandice is the person i would pick for that. I actually sit in the same chair as he did. On the dias of the court. Not really on that because we all change chairs as we get more senior. But the court actually has this tradition where you know who sat in each chair and it sort of depends on who replaced whom. So for my seat its me, and then the justice i replaced, who is john stevens. Absolutely superb judge and man, who unfortunately passed away last year. But at the age of 99, so unbelievable life. And then prior to john stevens was william douglas, who also served the court for many, many years. I actually call this chair that i sit in, knock on wood, the longevity chair. And then three justices back is justice brandice, who was dominated to the court around the time of a little bit after world war i, and served there in a very distinguished and noble, i think, way. He was a brilliant, brilliant writer. My favorite opinion of all time was written by him. Which one was that . Its an opinion about the First Amendment and about why we think of the First Amendment as so important. There were two justices at that time who wrote magnificently about the First Amendment. One was justice brandice and one was Justice Holmes. And Justice Holmes had some of the language that we know about today, the marketplace of ideas. His was a very sort of commercially oriented, almost, understanding of how the First Amendment operated, that ideas were in this marketplace and, you know, whatever prevailed in the market ought to prevail. But justice brandice had a much more poetic understanding of the value of free speech, and i think that the opinion for everybody to read, if you just go home and want to read a judicial opinion, its a concurring opinion in a case called whitney. And it talks about it talks about the First Amendment as connected to a Democratic Society and what the First Amendment does for a free People Living in a democracy. And its very beautiful. Its sort of the kind of thing that makes you cry. But its also it appeals, i think, to americans highest values. And i think thats what justice brandice pretty much did all the time. He had a very deep understanding of American History. He knew a lot about the founding, but he also knew a lot about the whole sweep of American History and he brought that knowledge to bear in his understanding of the country and of the law and of the kind of law that the country deserved. And he was very much sort of policy reformer in massachusetts. He was, before he became a judge. Before he became a judge. So he wasnt always although there was always law involved in it in some ways. So i want to ask you about the interview process. You interviewed with president obama twice. I guess the second time was better. Better. Its not actually true. The second time was not better. The first time was really i mean, thats probably the one that left the impression and you probably left a good impression. Thats why youre here. But what do president s ask you, anyway . What are they looking to find out when you have these conversations . You talk about the weather, family . What do you talk about . Well, i guess you chitchat for a bit. I did have these two interviews, and one was the vacancy where my colleague got the job. I had just started as the solicitor general. I had been solicitor general for maybe three months and all of a sudden there was a vacancy because justice suder left and all of a sudden i was on the short list. And i walked in and maybe we chitchatted a bit. But we mostly talked about he asked me what i had learned since i had become solicitor general and we talked about the court mostly. I think we talked about my ideas about constitutional interpretation, about statutory interpretation, about how to do law, about how to be a good judge. But i remember a lot of it we really did talk about my sg experiences and the kinds of arguments i had made and why i had made them. And what i sort of thought of the court after having watched them for a number of months. So that was my first interview. And then i did not get the job that time around. And president obama called me, another one of these disappointments, another highclass disappointment. But the president called me and said he was giving it to another justice who had been a fabulous judge for many years and is now a really esteemed colleague of mine. But he sort of said, you know, maybe there will be another chance. And he was incredibly gracious and lovely, even as he turned me down. And then the next time i interviewed with him, which was a year later, when John Paul Stevens retired, it was a crazy day at the white house. This is why i say the second one was not as good as the first. I walked in and it was the day of the bp oil spill, if you remember that day. And the president really had other things on his mind, i think, than to interview me. And i walked in and sat down. It was pretty late because he had been dealing he had had meetings and there was a real emergency. And finally, he made a little bit of time in his schedule to see me and i walked in and he said i know you, we dont really have to do this. And how did that feel . Well, it didnt feel all that great. I mean, i know that there were bigger fish to fry that day. But anyway, that ended up working out pretty well. And he called me a few weeks later and this time he offered me the job. And he remembered that this was a far better conversation than the last. When you go to see the senators, as you do when you get nam na nominated and you have to go see all 100 as a courtesy matter, you know, they profess to care a lot about things like abortion and guns and stuff. So when you go in, do they say what are you going to do about the Second Amendment or what are you going to do about abortion . Do they just come right out and ask you how youre going to rule, or is that not how do they get at that indirectly if they dont ask it directly . Well, a few do that, but they dont really get anything. Because there are these rules, right, where youre just not going to tell them how youre going to decide the case that they really want to know how youre going to decide. So they figure out ways to ask about a subject they care about maybe that are not quite so direct. So you mentioned guns. This was i would think that any subject that was the one that most the greatest number of senators asked me about, more than abortion, more than religion, more than any number of hotbutton issues. And both republicans and democrats, the very important Second Amendment positions, helder and mcdonald were pretty recent. Mcdonald had just been the year before. And, you know, many senators have constituents who care very much about this issue and my resume does not scream like you know, yeah, you know. East side of new york or is it west side . Exactly. So heres what a lot of them did, i know i cant talk to you about these cases, but i want to know, do you understand this issue, have you ever hunted . [ laughter ] no. Do you know anybody, does anybody in your family hunt . No. Do you know anybody who hunts . No. Have you ever seen a gun, you know . No. So i was pretty pathetic at all these questions. And i was feeling pretty bad about being quite so pathetic, because first off, its totally right and proper the senators should ask about these things. A lot of them do have constituents who care very deeply about this issue and want to know that a judge is going to at least understand their concerns, however the judge rules. And so im sitting there one day with a senator, hes a senator from idaho. I wont say his name, but there are only two. [ laughter ] and he has a ranch out there and hes a great hunter himself, and he was asking me these kinds of questions, you know, about hunting and how important this was to many of the people who lived in his state and could he tell them anything about my understanding of this issue. And i said to him it was late in the day and i was feeling a little punchy, and i said, you know, senator, ive not had the opportunity to have these experiences. This is not what we did on the west side of manhattan. But i understand why youre asking me about this and if you would like to take me hunting, i would be really happy to go. Thats pretty good. Well, i would say this look of abject horror passed over his face. And the white house aed who was accompanying me on all of these is just sort of holding her head in her hands. And i realized, okay, i went probably a little too far. So i tried to reel it back, and i said, senator, i didnt really mean to invite myself hunting with you, but i will make you a promise that if im lucky enough to be confirmed, ill ask Justice Scalia, who i knew to be an avid hunter, and whom i had gotten to know through various things, i will ask Justice Scalia to take me hunting. And when i got on the court i told the story to Justice Scalia, who thought it was hilarious, and like immediately scheduled the date for when he took me to his gun club and he taught me how to shoot and he taught me about gun safety. And then Justice Scalia and i would go hunting two or three times a year until he died. Birds or deer . Almost all birds. Quail and pheasant. Once we went out to wyoming to shoot deer and antelope. We each shot a deer but neither of us shot an antiloeelope. Once we went down to mississippi for duck hunting, but it was mostly birds. So this process of confirmation didnt expect me to have hunting stories, did you . No. [ laughter ] turned out i quite liked it. Did you . Absolutely. I wouldnt have kept going back. He wouldnt have minded if i said, okay, i tried that once, you know, i took care of that promise. Is there some amount of drinking that goes along with the hunting . No, people are very serious and you have to be very serious about gun safety. So only afterwards. [ laughter ] so this process of confirmation has gotten, shall we say, a little politicized and polarized. Do you see how we can back out of that . I mean, sort of one confirmation, one polarized confirmation leads to another and another. Its sort of like hatfields and mccoys at this point. By the time you were nominated, there were 37 senators who voted against you and that seems extraordinary. Why do you know that and i dont know that . Because i looked it up. Okay. But it seems crazy, and i have a sense that maybe they thought you were going to be too liberal. But i have a funny feeling at this point what even makes it worse is that its what sometimes we used to call on capitol hill a cheap vote. Its easy for a republican to vote against you. They can tell the base i voted against her and they know that youre going to get confirmed so they get the best of both worlds. You get confirmed and they get to say they voted against you. How do we back out of that . Because that sets the whole thing up in a very polarized and partisan way. And im sure ive heard you say and others that its really not good for the courts legitimacy. Is there any way to undo that . I dont know, and im certainly you know, im not in a position to be able to wave a magic wand and do it. There is a lot of history and a lot of water under the dam and everybody feels victimized by everybody else. But i will say that its long past time to stop it. I mean, i think everybody on the court feels this way. There were times not so long ago when Justice Scalia got confirmed by a 980 vote, when Justice Ginsberg got confirmed by a similar margin. I think it was like 971 or something. This is a relatively new phenomenon and its now thoroughly bipartisan in the bad way. Republicans, for the most part, did not vote for me and democrats f or for judge gar ma land. Democrats didnt vote for Justice Gorsuch or justice kavanaugh. And, you know, its gotten to a bad place and it puts it makes the court seem political in a way i dont believe the court is political. Somehow people have to get back to where they were. Most people here are undergraduates and i would like to and theyre probably not all that familiar with the process by which cases are decided, and so i would like to ask you sort of step by step to go through it a bet. So the first step for a case is that the Supreme Court has to decide to take it. They get 6,000 petitions and you choose ruffoughly these days ab 80 a year. So my question is do you read all 6,000 of those petitions . Well, not really. Do the clerks read it for you or do the clerks from the different chambers share it and summarize them and then you all get to read the same summaries . So most of the judges, seven of us, i believe, are in whats called a pool. And what happens is all the thousands of petitions just get divvied up and one clerk will get a petition. And so each petition is read front to back by, at the very least, one person. And the clerk will write up a memo, this is what happens in the pool. A couple often justices who do it outside do it different. But the clerk will write up a memo and then in my chambers that also goes to one of my clerks. And my clerk will take a look at the memo and will annotate it, will ta i agree with this or i dont agree with this for the following reasons. And then so the justices get these memos for every case and ill read the ones that i think are serious. You read the petition itself. If i think its the kind of thing that i might want to ask the rest of the conference to discuss, or if its the kind of thing that another member of the court wants to be discussed. So theres something called putting a petition on the discuss list. And from those thousands and thousands of cases, i would say, you know, Something Like a few hundred get put on the discuss list each year. And those are the ones that you read. And when you get to the conference where you decide that, do you just go through it bing bing, bing and raise your hand or do you real discuss it . Well, the petitions, it varies, but i would say that theres a fair bit of discussion on most of it. And the chief justice will always start. This is the way we do everything, whether we talk about petitions or whether we talk about the cases that are being argued before us. The chief justice always starts and says how hes going to vote on something and then it goes around the table in seniority order. I guess on the petitions its a little bit different because the person who put it on the discuss list, which is often the chief justice, will start. But sometimes lets say if i put something on the discuss list, ill start the conversation. And then it will go to the chief justice and it will go around the table. And theres a rule that nobody can talk once can talk twice before everybody has talked once. And this is a good rule, especially if youre a relatively junior justice, because it takes a while to get to you and its better if people but then, after each one of us has spoken, then we often engage in more back and forth to try to figure out whether its the kind of case we should take. Or similarly, for argued cases. And whats the criteria for taking a case . Well, a big criteria is just whether different courts in the country have divided on an issue. So sometimes you look at the Supreme Courts docket and you think its not all that important. Why did they take this case . And by itself, maybe the issue isnt all that important. But one of the principles of our legal system is that when it comes to federal law and this is different for state law or local law, but when it comes to federal law that everybody should have the same law applied to them. And so you dont want a situation where theres some court in one part of the country that interprets or applies federal law differently from a court in another part of the country, and then two different people are being subject to really two different kinds of fra federal law just based on where they live. So the court solves those divisions. We call it we take it because theres a split in the circuits, meaning the u. S. Court of appeals. And a lot of what the court does is really just do that. Make sure that theres uniformity in the way its interpreted and applied. But there are a lot of cases we take just because theyre important. Any time a lower court invalidates, for example, a federal statute on constitutional grounds, we take that case because we think if theres something that congress has done thats getting invalidated by a court, it should be us. It should be the top court. And sometimes well take cases just because we know were going to have to deal with them at some point. Its just the kind of case that affects too many people for the Supreme Court not to resolve a question about it, and so well do it sort of do you ever not take a case because its too hot to handle politically . You know, not in that sense. I mean, i think that there are sometimes prudential reasons for saying lets not take this now, weve just handled several cases on the same subject, we should see how that plays out. But i dont think there are very often or sometimes where its just like oh, my god, were scared of doing this. If its the kind of legal question that is the sort of legal question that we should resolve, then we do it. Sometimes theres groups of justices that want to revisit an earlier precedent, maybe change it a little bit. Theyre looking for an opportunity to take a case. Do you defer to them, saying if they want to take it, well talk about it, or do you if you dont think the outcome is going to be to your liking, do you say i think ill vote against this one . Well, i dont think theres a lot of deference in general. I think each of us make our own independent decisions about what kind of cases we should take, and then about how we should decide them. Certainly if theres a case that where somebody says, you know, i want to go back and overrule something, there are lots of good reasons not to do that. And you might think that might be what he wants to do but its not what i want to do. So however you think it will come out, well or poorly, that would be a reason for not going along. So you get to this thing called oral arguments, and before the oral arguments you and your clerks read all of the filings in the case. There can be many filings. You dont read all the amicas briefs, do you. At least one of my colleagues does. I read, of course, all the parties filings and then i ask my clerks, whichever clerk has the case, that person has to read every single brief. But this can be an incredible number. I mean on big hot cases, it can be upwards of 50, right . And then the clerk will say to me, you know, these are the few that i think that you should read that actually Say Something different from what the parties have said. And do you have to carry these papers around with you all the time . Going home . Theres a lot of them. Theyre very heavy. We sort of have technology now. A little bit. So you read them on if you want to t. I tend to like reading them on paper, marking them up. So then i do have to carry them. But some of my colleagues read them on their do you have a meeting with your clerks before the oral argument and pretty much hash it through and figure out how youre going to vote on the case even before the oral argument . We definitely talk it through before the oral argument. Sometimes ill come out with a pretty good view of where ill come out in the end. Sometimes not. So it just depends on the case. But one of my one of the most fun parts of the job for me, and i hope for my clerks, is we all sit around, the five of us for each case, and just go through all the arguments and, you know, i like them to disagree with each other and i almost you know, if theyre all too i agree with what then i get kind of it makes me play devils advocate myself or sometimes i assign devils advocates. I make it clear that im unhappy with all this agreement. Because i like hearing different arguments and trying to figure out which are the ones that sound best. So then you come into oral argument, youre all lined up there on the dias and these lawyers have prepared extensively for this and they get three sentences out three sentences would be a good day. Already somebody is jumping on them asking them a question usually not about what they said in the three sentences. Weve a little bit changed that just this year. We now give two people two minutes of uninterrupted time. Which feels like a lot, actually. Because literally three sentences would have been, oh, were being very charitable, we gave you three sentences today. My first argument yes, which was your first argument on any appeals court, is that correct . Thats correct. And it was in an important case. It was the reargument of Citizens United and i knew that it was a pretty important case. And i got one sentence out and then justice i was very nervous. It was my first argument. And i was very nervous. And i got this one sentence out and then Justice Scalia sort of leaned over the bench in this way that he had, and he said, wait, wait, wait, wait just like that. And then he told me that this one sentence that i had managed to utterer, which seemed to me not very consequential for a sentence, was completely wrong. [ laughter ] but it was kind of great. I actually didnt mind it at all. In fact, i sort of preferred it. This year ive been watching these people try to fill out two minutes of time without being interrupted and thinking we should just do them a favor and interrupt them. Because sometimes it is doing people a favor. Its like it just gets you in the game right away and gives you something to respond to. And i know that thats what it did for me. When Justice Scalia sort of challenged me, then you have to go back at him. Do peoples minds get changed by oral argument . Sometimes, sometimes not. It really depends on the case. There are some some of the cases, often some of the highprofile cases, people have pretty strong priors and i know pretty well how they feel about a particular subject, in part because theyve seen similar cases on the same subject many times before. So theyve developed a way of thinking about an area of the law. And youre not going to get them off that way just by having a good half hour at the podium. But there are lots of cases where we that we do that thats not the case. Where people are coming to it fresh, where people are really engaged by the arguments, where people are trying to figure out how to think through a case. A large part of what we do at argument, too, is talk with each other. You know, theres the lawyer and the lawyer is awfully important, and sometimes the lawyer says things that make you think about the case in a different way. So, too, sometimes your colleagues say things that make you think about the case in a different way. And a big part of what we do at argument is basically have our first conversation together about a case, which we dont have we dont meet about cases before argument. So it really is our first opportunity. And the next time well meet is when were in conference and were voting on cases and well really start to vote. So because thats the way our deliberations are structured, the argument time becomes crucial for judges to talk to other judges, and to say this is the way im sort of thinking through a case, and to put that in everybody elses head to think about in the next couple of days before we actually meet and conference. And its a few days later you meet and conference. A few days later we meet and conference. And you go around the room. Is it like a oneminute pitch . It varies. Sometimes its short, sometimes its long. It depends what the case is. It depends how complicated it is. It depends if other justices have said things before you. And you respond to them . And either you respond if you agree with them, you just say i agree with what justice xyz said. But often you respond to them, right . Its like i want to make three points, but i also want to respond to a bunch of other things that have been said around the table. Does the discussion ever change anyones vote . Yeah, for sure. And again, it depends on the case. But not infrequently somebody says, you know, i came in thinking this, but something that another justice said is making me rethink it and im open to continuing to think about it, im open to being persuaded. I remember cases where people would just say, you know, literally would go around the table and then somebody who had already spoken would say im changing my mind. And if somebody changed their mind because of something that i said, i would count that as a pretty good day, right . But i think every justice has done that at some point or another. So then theres two sides in the sense after you vote, one to do something, some group of people want to do something and the others dont. And the senior justice of each side gets to assign who writes it. And so you ever go up to people ahead of time and say, ruth, i would really like to write this one . Do people do that . Well, i dont do it. Okay. So i just take what people give me. I think thats kind of the rule of a relatively junior justice. I think maybe as you get a little bit more senior, maybe as you get a little bit more senior you feel as though youve paid your dues and maybe you ask for a case or two. And what is the criteria that the senior justices will use in how to assign it . Is it i want to spread the work around or this is something you know a lot about . Whats the reason that someone gets assigned a case as opposed to someone else . Ive never been an assigning justice, so im really not sure. And probably different assigning justices think about that question differently. The chief justice is often the assigning justice, but not always. Sometimes it could be Justice Thomas or Justice Ginsberg. It used to be Justice Scalia for a number of years before he passed away. And i think, you know, who will do a good job on this. But we dont have different subject matter areas. Its not like, oh, this justice specializes in this area and Justice Kagan specializeness that area. We dont do that. We all write about everything. So its sometimes a complicated process. Youve heard, lets say, 10 or 12 cases, and people are all over the map on them. And everybody by the end of the year, and even in each sitting, gets an even number of assignments. So you have to figure out, like how do you parcel out all these cases, given that people are on all different sides. And sometimes its pretty complicated. So you get assigned to write an opinion. Do you in your case, do you take the first cut at writing the first draft, do you let the clerks do the first draft, do you split it up and say ill do the first half, you do the facts, ill do the analysis . The way i do it is my clerks do a first draft and then i put it on one computer screen and then i open up another page on another computer screen and i start writing. And i use the draft as a launching pad for my own thoughts. I use it as a collection of good ideas, a collection of citations. But i write sort of from start to finish my own draft and i do that because, you know, thats the only way i can think through a case, even if i have a very good draft and if im intently editing. Theres just no way i understand the case as well as if i just write through it by myself. And i do that because i want every opinion to sound like me and i have lots of great clerks and lots of great writers, but they sound like themselves. They dont really sound like me. And i want every opinion to sort of sound the same. So i do that, and then i give it back to the clerk who originally gave me the draft and that clerk will edit it and well go through a round of edits. And then ill give to it my other clerks and well go through a round of edits. And this is before you circulate it to the other people who are on your side or circulate it to everybody, actually . Right, this is before i circulate at all. And then once you circulate to the other judges, do they send you mum oemos back . Do they call you on the phone or come by the office and say that fourth paragraph, i cant live with that . Well, sometimes they love every word. But when they dont, usually were very were memo writers. Sometimes we talk, sometimes we get on the phone, sometimes we go down to somebodys office. But for the most part, the rule is that if i have something to say to another justice, it should be said in the way that every other justice on the court can also see. So theres a kind of transparency in writing memos rather than just having a private conversation. Some private conversations are had. Its not like theres any strict rule against it. But for the most part we write memos to each other saying i dont like this part of the opinion, could you change that part of the opinion, could you knock out this, add that, that sort of thing. A lot of that goes on. If you write a dissent, do you wait to look at the majority opinion before you start or do you start right off . I almost always wait, yeah. And so then you announce your decisions at the beginning of the session and sometimes you read from the bench when you think well, anyway, how do you decide which of your opinions or your dissents that youre going to read from the bench in particular . Ive only done it three times in nine years and i think thats pretty typical. I think most judges go through a year and never do it, read a dissent. The times you would do it is if you think the dissent is really of great importance to the law, to the country. So ive done it three times. One was my first year, which was in a Campaign Finance case. It was a statute out in arizona that the court struck down as being a violation of the First Amendment, a kind of Public Financing scheme that i thought was perfectly appropriate and consistent with the First Amendment. The second time i did a couple of years ago on a case which dealt with the way with whether schemes by which employees contributed to labor unions, even if they were not members of those unions, were a violation of those employees free speech rights. I thought that they were not and i thought it was a case in which the court overruled a very wellestablished precedent and i thought unjustifiably so. And so i read from the bench on that. And then last year i read from the bench on a gerrymandering case where the court decided, i thought quite wrongly, that courts couldnt get involved in reviewing even the most extreme gerrymanders, places where you could vote 51 republican and the republicans would end up with two of 11 seats, or ditto for democrats. And the court said that it didnt have the tools to invalidate those schemes, even though it was even by the courts own admission, depriving people of an equal right to vote. And i thought that that was a bad decision and i read from the bench on that one. So the criteria is when you want to do what, call attention to something or when you think the majority is particularly out of i think there are lots of dissents where you dissent, you think the opinion is wrong, but, you know, there are two ways of seeing something and sometimes its more important to decide something and decide it right. And you think you ought to dissent so that the parties know that it wasnt a slam dunk decision, there were two ways of thinking about the case. But after the case is over, you dont think about it anymore. Its just like, okay, thats what the court decided and you go about your business. But i think there are some dissents and not even one a year. Ive just had three in nine years, where you think theres something thats gone badly wrong or you really and where you think that its a decision of real moment to the American People. And who are you talking to . Partly youre saying to the American Public i think that something bad has gone wrong here, and sometimes the American Public actually can do something about it. You think about the gerrymandering case. Within months, there were state courts that decided to invalidate extreme gerrymanders. There are people all over the country who are trying to put into place election systems that are not subject to extreme gerrymanders. So sometimes there are people who can actually change matters on the ground and sometimes youre maybe just writing to history, you know, those First Amendment cases that i talked about at the beginning of this where holmes and brandice really set the foundations of First Amendment law in our country, so that 100 years later we still believe what they told us about the importance of expression in america. Those cases started as dissents and it wasnt until decades later that they became the track. Is it more fun to write dissents, actually . Yes and no. Its not good to lose and its especially not good to lose if you think that its a matter of significance. But yes, as a writing kind of, yes, its a lot more fun to write dissents, and dissents are a lot more fun to read. It turns out that people sort of peoples writing gets more vivid and more colorful, it gets theres more personality in separate opinions than there can be when youre writing for an institution. You know, the Supreme Court says, as opposed to, boy, the Supreme Court said this and let me tell you why its completely wrong, right . So i wrote a forward for a book thats coming out about ive talked about Justice Scalia a bunch here. George mason went to scalia law school. I wrote a forward for a book thats coming out with Justice Scalias opinions in it. And whats so interesting to me, i looked at the table of contents and basically about 90 of them are separate writings, are either dissents or separate concurrences. And i think its because you can be freer. You can say heres how i think the law should work without worrying about are you going to get five votes for that, without worrying about how an institution like the Supreme Court would say it. Its just you. And without worrying about the precedence of every word. Thats right, its just you. So i wouldnt be the first person to point out that your a fabulous writer. I would say that youre good enough to be a journalist, even. [ laughter ] but im going to read from the redistricting dissent to people have a sense of it. This is the first two paragraphs. For the first time ever, this Court Refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. And not just any constitutional violation, the partisan gerrymanders in these cases deprive citizens of the most fundamental of their constitutional rights. The rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, they debased our democracy, turning upside down the core american idea that governmental power derives from the people. These gerrymanders allowed politicians to promote themselves and promoted popular above popular will and if left unchecked, gerrymanders like the ones here may irreparably damage our system of government. Thats pretty good. [ applause ] when i just explained that case to you, i didnt really talk like that, did i . No. You can do it better in print. At least i can. But then you get real cheeky a few paragraphs on. There was an issue a little bit of snark . I like cheeky better. Anyway, one of the issues was the court says, well, you know, weve got to allow a certain degree of partisanship, this is redistricting, afterall. And then when is some pattersonship too much, how much is too much . And you write the majority of how much is too much critique fairs no better than its knew ralt argument. How about the following for a firstcut answer, this much is too much. Which i thought it was. And it was only the firstcut answer. There were many more lawlike answers. But you looked at that and you said this much is too much. Wherever we draw this line, this is on one side of it. So ive got one more area i do appoint my clerks to be a kind of hold you in check . A little bit. Most of my best lines end up on the cutting room floor where they say just too much snark, Justice Kagan, yeah. I want to talk about diversity. Theres a tremendous diversity on the Supreme Court. Theres four of you from harvard law school, four of you from yale law school, and theres one from columbia. So this question somewhat revised comes from shane crow, a student here. As someone who went to princeton, oxford and harvard you know the benefit of an elite education. Recently weve seen the length to which parents will go to get their children an elite education. What ideas do you have to open up the judiciary to those without that elite pedigree . I do think its unfortunate that the court is right now represented by own a couple of two or three law schools. And i think i dont quite know why it is. Some part of it is just flukey and its just these seats come open one at a time and you can only there are only so many dimensions of diversity you can think about. And along with thinking about Everything Else you want to think about in nominating. So im not sure any of us got appointed because we went to these schools, although for sure these schools, you know, do give opportunities to their students. You could argue this is a perfect thats clearly not true. I mean, there are great law students all over and great lawyers who come from all over the place and i do think this is a bit fluky if you look at the american judiciary as a whole, even at the Circuit Court level, i dont think you would find anything like this, and i think its a bit unfortunate or more than a bit as i said. I go to a lot of law schools and it doesnt surprise me that you just read that question because i go to lots of law schools and one of the first questions will be, what is this . Im not a student at harvard or yale does that mean ill never get to be a Supreme Court justice . And you know the answer isnt a no, and in a good world putt it wouldnt be a no. Not only pixel or, another student asked this question again i revised slightly. What advice would you give to a young woman in a male dominated feel like the law and in particular one who wants to become a judge . You know, go for it. What i would say, if this is a law student no actually it is not. An undergraduate. That is a great ambition, and work hard, and dont get out work by a lot of money. When i used to teach law school, i used to find that some of the women didnt volunteer as much as the main, maybe because, it could be that man top when they dont really know all that much, it could be. laughs but i used to say to the women just get in there because a part of learning law is learning the language, is learning how to talk law, and be assertive and be bold do, and you know, you are as good as anybody and go be a judge. Do you think law is now male dominated or do you think you have broken the back of that . Well i think we are in a ton better place than we used to be, you can even see this on the court, there have been for women justices and to our of one generation and to our of another, right . So Justice Oconnor and Justice Ginsburg where the real pioneers, and when they got out of law school, nobody would hire them, a law firm wouldnt touch them, they couldnt get clerkship jobs, they sort of hot to construct careers out of nothing was because nobody wanted women at the time, and then 25 years later was around the time where Justice Sotomayor and i got out of law school and at that point, you know, 40 of a Law School Class was women and now its over 50 usually and you can get all the same jobs, to be acquired or go to a farm, but there is still, i think the main obstacle for women in law these days is women are still often the people who look after children, not always but often, and constructing a career where you can do all of the high powered legal things and also have the time you want to have a family is also i think the great challenge and why even now, law firms dont have enough women partners, why if you look at the ceo ranks of businesses you will find lots of men who were law School Trained but not all that many women who were. So that has to change. We are almost out of time in fact we sort of our, but i will ask you to final questions. Make them good. Well they are easy. The worst part of the job and the best part of the job. While the best part of the job, all switch the answer, the best part, this is an amazing job, i love thinking about law, and to be in the position where you can think about often the most interesting legal questions of the time and also be able to advance the rule of law, we talked about the importance of the rule of law and to do some justice is an amazing privilege and honor and if you dont appreciate that every day, that is the best part of the job. Is to be able to make a difference and also to think about these fascinating legal questions. The worst part of the job is when it doesnt go you are way. The worst part of the job is when you lose some of the cases that you think are really important, and where you think the court has just made a difference but not a good difference and sometimes i come back from a conference and i want to ram my fist through a wall, but i think we all feel that at times. Every single one of us. And you have to understand that you are not going to win them all, and we are nine people with different views of the law and sometimes my views will prevail and sometimes they will not, but i think that that is probably the worst part of the job. Do you despair, i hate to say this, that your side will be losing more in the coming years before you have a chance to win more . Are you despairing of the direction of the court . I do not despair of the court. I think that the court is a Great Institution and i think i have an unbelievable amount of respect for my colleagues and i think even when i lose, i know that everybody on the court is operating in good faith and trying to do the best they can in handing, handling really hard legal questions. But i also dont despair, you know it is also not just, im going to lose all the time, i will feel, maybe i will and maybe i wont, i think nobody knows, what the next case brings, let alone with the next year or decade brings, and i think if you look at the court as an institution over time, the court has done very well by the American People and i have a lot of faith in the institution and the people who make it up, and i am convinced that it will continue to do so. Well lets thank Justice Kagan for being with us. applause thank you. Thank you. Could i ask you to stay seated for a while . applause government funding runs out for many it is now my pleasure to introduce a lawyer interfere for sessions, shes investor carla hills, she served as the United States trade representative under george h. W. Bush and United States secretary of housing and urban development in the administration, she is currently the chair of merit is as well as the chair and ceo of hills and company an