Transcripts For CSPAN Interview 20240705

U. S. Supreme Court Justice elena kagan was interviewed by Jeffrey Sutton at the library of congress in washington, d. C. , to discuss her life and career, including other Career Options that she considered before deciding on law, what it was like to clerk under the firstever black supreme Court Justice Thurgood Marshall, and her approach to writing opinions. This is about one hour and 10 minutes. Good afternoon. Thank you for joining the law library of congress and the United States Supreme Court for the 2024 Supreme Court fellow program lecture. I have the honor and privilege of serving as the librarian of congress. It is my pleasure to send greetings from the beautiful auditorium of the library of congress of Jefferson Building to our in person audience and everyone watching online. I have the honor and privilege of serving as the law library and of congress. It is my pleasure to send greetings from the beautiful auditorium of the library of Congress Jefferson building to both our in person audience and all of you watching us online. Let me just say a couple of words about the lot library of congress. The law library serves as a custodian of the legislative collection of nearly 3 million items from all countries and Legal Systems around the world. Our Skilled Staff of attorneys and bought librarians provide Research Assistance and Reference Services on United States federal and state legal issues. Our foreign law specialist are a Diverse Group of foreigntrained attorneys who provide full and comparative low research and analysis to all three branches of government. Our team is responsible for developing the collection for more than 300 Legal Systems including foreign and international jurisdictions, as well as the u. S. States and territories in all formats. Each month the law library host free webinars on topics covering the u. S. Is a foreign, and international and comparative law and invite you to sign up for these webinars on a website, law. Gov. We are so honored today to have the u. S. Supreme Court Associate Justice honorable elena kagan at the library of congress. I want to mention our Manuscripts Division contains the papers that many supreme Court Justices, and the law library of congress is a proud suppository of records and a collection. So after the event to date, we hope you will return to explore these wonderful collections. And at this time, i would like to ask that you please silencer phones, and i would also please ask you to refrain from taking any audio or video recordings or photos of the event. And with that, i would like to introduce the counselor to the chief justice of the Supreme Court of the United States, judge robert and doug ducey. Thank you. [applause] thank you so much. I thank you. Sincerely thanks to dr. Hayden and everyone at the library of congress for hosting the 2020 for Supreme Court Fellows Program lecture. I am honored to welcome you here today and my dual role as counselor to the chief justice and executive director of the Supreme Court Fellows Program. The Fellows Program celebrates its 51st year and i am pleased to tell our audience more about it today. The Fellows Program offers mid career professionals, recent ball schoo graduates from the law and Political Science fields an opportunity to broaden their understanding of the judicial system through exposure to federal court administration. The Supreme Court fellows commission selects four talented individuals to work for one of four federal judicial agencies for a yearlong appointment here in washington, d. C. Those agencies of the Supreme Court of the United States, the Administrative Office of the u. S. Courts, the federal judicial center, and the u. S. Sentencing commission. All fellows gain practical expense in judicial administration, policy development, and education. They also benefit from time to study and write, and from that Vantage Point in which they can develop an Academic Research agenda as well. In it is so wonderful and it is so wonderful to see our fellow alumni. I saw some of you on the walkover, in the audience today, and also the funds for our 2024 2025 fellows class. Every class of fellows is special but this years class i want to tell you is composed of Exceptional Individuals who are talented lawyers and goodhearted humans. I see them walking all the time into our building and sometimes i even encountered them over at the Administrative Office and i will say my phrase for them them his all for one and one for all. They are so supportive of each other and they have adopted what we call in the Counselors Office our mantra, which is other duties as assigned. [laughter] there are many times working from any of those agencies but particularly over at the Supreme Court you never know what each day will bring in this class of fellows has been wonderful in pitching and wherever they are needed so let me just tell you a little bit about each of them. Adam kugler is the fellow assigned to the judicial center, the educational and Research Agency for the courts. Adam joined the federal Fellows Program for the u. S. District court from connecticut where he clerked. I know adam is sitting right in front of me. There he is. They are but there. They are right, believe me, the bright lights are here, its hard to pick anyone up, but adams future bosses sitting right in front of being the Second Circuit so adam you have a good home to go to when youd leave us. He earned honors from the university of connecticut where he was the managing editor of the connecticut law review. The fellow assigned to the Supreme Court and the Counselors Office is torry nickel, she joined the Fellows Program from private practice in missoula, montana and she previously clerked for the ninth circuit and the u. S. District court for the district of montana which believe it or not is one district. She earned her ba summa cum laude in Political Science from Carroll College and a jd with high honors from the university of Montana School of law where she was coeditorinchief of the montana law review. Torry has truly mastered other duties as assigned. [laughter] our next fellow is viviana visio with the fellow assigned to the u. S. Sentencing commission which is the Agency Responsible for the establishment of sentencing policies and practices for the u. S. Courts. She joined the Fellows Program from the u. S. District court for the Southern District of new york where she clerked for judge Gregory Woods and she previously clerked for judge anthony personally for the u. S. District court for the middle district of florida, she was a participant in the attending journal Honors Program at the u. S. To permit of justice serving as a trial lawyer in Money Laundering and Asset Recovery section of the criminal division, so if you have a problem in that area, she is your person. She earned a ba summa cum laude in a jd magna cum laude from Stetson University where she served as editorinchief of the stetson law review. Our fourth fellow is jose vasquez who is assigned to the admin Strata Office of the u. S. Courts in the Central Support agency for the judicial branch. He joined the Fellows Program from the u. S. Court of appeals for the 11th circuit where he clerked for judge adelbert jordan in previous he clerked for judge jaclyn becerra of the u. S. District court for the Southern District of florida and he earned his ba in government from georgetown and his jd from the university of miami law school, but degrees earned magna cum laude. We have four really smart fellows. You have been a joy and we are happy to say your expenses only half over. So we will look forward to seeing what your compass and the remainder of your term. I now had the joy also of introducing our two guests for today for your lecture. Chief judge Jeffrey Sutton has served on the u. S. Court of appeals for the six circuit since 2000 three and its chief judge since 2021. He is a current member of the executive committee of the judicial conference of the United States and most pertinent to todays events, the chair of the Supreme Court fellows commission. Usually chief judge sutton has chaired the committee on the rules of practice and procedure in the Advisory Committee on appellate rules. He is an academic too having taught at Ohio State University college of law since 1993 and also at Harvard Law School. He is best known in the academic world for his work on federalism and his casebook on state constitutional law. Chief judge sutton clerked for the second certain and justice antonin scalia. Justice elena kagan has served on the Supreme Court of the nightside since 2010. Prior to her appointment to the court, she was a solicitor general of the United States, the federal governments top appellate lawyer sometimes referred to as the 10th justice. Prior to that, justin kagan was the very popular and successful dean kagan of the Harvard Law School and she had previous he can a law professor at harvard and the university of chicago and she served in the Clinton Administration as associate counsel and his Deputy Assistant to the president for domestic policy. Justice kagan clerked for judge abner nicola on the d. C. Circuit judge Justice Thurgood marshall. Please join me in welcoming two of my favorite people on the planet for what i am sure will be a fun and far ranging conversation. [applause] you can see me. I cant see you. [laughter] thank you, judge. Another slow day at the office . Yeah. [laughter] everybody is laughing, so they must know what i did this morning. They see the irony. I was thinking the opposite. It would be impossible to make news donate because everybody would be focused on the morning, which i think is good. I will see what i can do. [laughter] i will point out that the fellows Commission Set this date long ago in the fall. [laughter] you know that because if they hadnt, i would have said no. Well. And it says so much about you. That i did not cancel. [laughter] that is exactly what im saying. [laughter] so anyway, its an honor to be with you anyway but today in particular, so thank you. I really appreciate it. So i am so thrilled to be doing this. So your father was a lawyer. Your mother was a teacher. You did both. I was a lawyer and a teacher. So this is easy to understand. They had a big impact on your career choices but whether other teachers or coaches who had an influence on you . I think constantly. Every place i have been i have had great mentors and i do not think, i think this is true of most people, right, you dont, people help you along the way, and people help you a lot along the way, and i have been really lucky every place i have been. I have had people who looked out for me so i guess i am a little reluctant to name names because i am afraid i will miss people because truly, i have had a lot of jobs. It used to be before i got this job sometimes people would introduce me the way bob introduced me and it would be so clear i would change my jobs every four that i would say you know, the secret about me is i cant keep a job. Every place, you know, there is somebody i could look to for advice and support and counsel, and i dont think you can do stuff unless that is true. All right. Do you have a particular person . I do, but you will have to save those questions until we are done. [laughter] but how about your writing . I think everybody here would love to know who might have been some of the influence on your writing. The first influence was my mother did my mother was in Elementary School teacher and this was something she thought about was how to teach young people and she cared a lot about good writing, and so, that was my first influence. She i think taught me to write. I think the second person, i will name names for this was because i think there are two people who are a little bit head and shoulders above everybody else in terms of writing. The second person was my senior thesis advisor. I went to princeton. You had to do a big paper your senior year. I was a history major. I had really the extraordinary opportunity of working with a very young professor at the time who is not so young anymore but he is at princeton. Yes. I did my junior paper with him in my senior thesis and he literally went over every page of both multiple times and taught me better ways of writing. And you know, i learned an extraordinary amount from him, you know, about being a good historian, i guess for that time but the stuff that really really has made a difference in my life , is i came out of that experience a much better writer than i went into it. Now shifting a little bit to court opinions. When you think of your writing, you are trying to explain why you are doing what youre doing, but you have an audience in mind when you are writing . I do. I dont know if this really makes sense because some of the opinions i write, probably the only people who, them are the lawyers read them are the lawyers in the case or some set of lawyers who specialize in the subject matter. Try being a court of appeals judge. It is worse. Yeah. I tried to not think about that. I try not to think about that the only people who will read this opinion are specialized lawyers. I really try to write so that interested americans can figure out what i am saying and why i am saying it. And you try not to dumb it down too much, so there is a balance you have to strike because you dont want to dumb it down. You dont want to be in terms of the substance, sophisticated and you know, to treat difficult things as though they are difficult things, but at the same time, i guess what i would like is that it should be the case that even you know, even if they dont understand every in and out that an interested person with some amount, you know, like i say, i think of myself as like writing for, you know, serious newspaper readers or Something Like that, you know. That they should be able to pick it up and get the gist and figure out why it is the Supreme Court decided what it decided today. Do you ever have your moms voice in the back of your mind . Like what would mom think of this . [laughter] i think that would be a little bit scary, honestly. It would be a little bit scary. You could never really meet her standards. [laughter] she was tough. So i have a more generous voice, you know. [laughter] well, i would jump ahead to a point i wanted to talk about a little bit later was Justice Scalia. He had something similar with his father. My understanding is his father would mark his d. C. Circuit judge. Oh my gosh. If my mother had been alive by the time i was judging, she would have done the same thing. While we are on the topic of Justice Scalia it is funny when you said that because some of the things i sometimes set up a Justice Scalia is sometimes just as clea and i come i will give you a shot, we were on different sides of an issue. [laughter] i am trying to think. I used to have a little scalia voice right over here. So effective at that. He did the same thing to me. Ok. You were probably on different sides less often but i used to think what would he say about this argument. And that isnt actually helpful thing to have. It is like, ok, if i know how Justice Scalia is going to try to pick apart this argument, then you figure out how to make it stronger so it will be less vulnerable to the great Justice Scalia dismantling. Whether you could really ever do that you know, he always had things to say, notwithstanding my efforts. [laughter] but sometimes i did. I thought of him a lot, like, you know, what will he say about this . What is he going to admit is good and what hes going to think is like really worst . He never gave out compliments, but when he did, you knew they were real. Absolutely. Well, i know firsthand he had tremendous respect for you and was thrilled when you want on the court. You should talk about your relationship which is as clea. Why we are talking about Justice Scalia is ok. You clerked for justice clea. Yes. Exactly. As i know firsthand from that expense and staying in touch with him, he was thrilled when you are on the court and had tremendous respect for you and a lot of affection for you. You state that as though it is surprising. [laughter] well. I am a nice person. [laughter] you are the one who introduced the point. So, the thing i think some people in the audience might assume, lawyers are not, is people who disagree about the meaning of the constitution might have a hard time having close friendship, and maybe you could explain how that worked, because it did work. Yeah. It totally did work. I had an enormous amount of respect for him and the kind of judge he was, first of all but i also just like him enormously. And we were good friends. I mean, i found him an extremely generous, funny, warm human being, which is not necessarily something that you get when you read his opinions. [laughter] you know . That kind of personal warmth. But he was, you know, he was a wonderful colleague. He had a great sense of humor, and he was a great friend. I mean, he was a great friend to a lot of people and cared about his friendships a lot. Yeah. He used to say by the way, about disagreeing, one of the things i heard him say many many times was he said you know, you cant take it personally if you take it personally you are in the wrong job, meaning you cant take what you know if im writing the majority in hes writing the dissent or vice versa, especially if i was writing the majority and he was writing the dissent and he comes that you really her, but you know hard, but you know he would say many people came at him hard and you cant take it personally. That is not the nature of the business. That was one of the things i actually learned from him was it wasnt personal. You know, he believes very strongly in some ideas, and i believed very strongly in other ideas, that there was nothing personal about it when we went headtohead, and you should not think it that way. Well, i heard him say it many times. I tried so hard to internalize it. It has never worked. I cant think of a time i got a dissent from one of my majorities or im writing the majority somehow dissenting in the first time i read it i said well, this is not about me. [laughter] this is just at a level like this. That is not about the idea . Lets discuss the ideas. No. I find it easier to discuss your ideas versus Justice Scalias ideas. [laughter] i find it very hard. I think it takes a lot. Maybe that says something about me. There was one opinion and some people would know what this where he really went after it not only the opinion writer, but the opinion joyners, and he said like if i have ever joined an opinion like that i would put a paper bag over my head. [laughter] or Something Like that. And you read that and i take your point. It could seem a little personal. [laughter] but. Well, i never, i learned early on i was not going to try to be like Justice Scalia. [indiscernible conversation] i have to say that i do. Nobody quite has the wit of Justice Scalia, you know. I have a sharp pen where i can, so the last thing i would do would be to say, oh, that is really terrible, because i have been known to be pretty, i have been known to be a bit acerbic myself. I would put it differently and not put it in those terms but i would say that Justice Scalia had courage, so it took courage to be a lone dissenter. That was the year he wrote that dissent. It was extraordinary, because it was that this was the constitutionality of the independent counsel case. Everybody else thought well, it was a very different time in a different view of the law, may be different experiences the country had, and everybody thought well of course the independent counsel statute is constitutional. 81 and he wrote the loan dissented everybody else thought it was crazy, and it turns out to be one of the great dissenting opinions of all time, and to have a lot of, not just in terms the way it is written, but a lot of pressings about the difficulties of having an independent counsel and what you should be concerned about. Thats not necessary to say he was right, but it is to say you know, he wrote an extremely effective good and in many respects pressing aunt dissent and it shows you how pressing aunt everybody was Walking Around the court knowing what is he doing. Why is he doing this . May be in his writing sometimes he was too courageous. That might be the way i would put it, he was too courageous with his pen. Speaking of supreme Court Justices, you clerked for justice marshall, which strikes me as this incredible gift. That was at a different time. What was it like . It was an incredible gift, i mean like in every respect. Justice marshall was nearing the end of his career, and you know, maybe he was looking back a little bit, and we were really treated not just to the typical Supreme Court clerkship, which as you know a great experience, as you and many other people know, but like a daily history lesson. He was in my view the greatest lawyer of the 20th century. He is an iconic american figure, you know one of the great people in American History, and we would go into his Office Every Day and we would do the sort of standard Supreme Court business. We would talk about the cases and about opinions and things like that, but then at some point that would be done and he would segue into like storytelling, honestly, and he was the greatest storyteller, not only did he have Great Stories to tell, but he was in fact the greatest storyteller i have ever known. He was a raconteur, funny. He did impressions of people. He had voices. [laughter] they were very good. And you know, sometimes he turned it on some of his colleagues, maybe. [laughter] i wont, but, you know he had facial expressions. He had this marvelously mobile face and so it was a little bit like a show but it was also a history lesson. I mean there are these people, and you know we were all in our late 20s or something and we were being treated to somebody giving us a sort of World History of some of the most important events of our time. You know, he was, i say he was the greatest lawyer of the 20 century, you know, number one, i would think that he did the most justice, right . And to be in the presence of somebody for a year who had done somewhat so much to change the face of america and to make it a more just society was really quite extraordinary in itself. He was also just a fantastic lawyer. He was, and he showed that even as he was a judge. He was one of the very few supreme Court Justices who really their principal contributions came before they were a justice, right . He was a very fine justice, but he was a great great, great lawyer in terms of just you know , but he contributed to the country. And also, just his skills were very much sort of lawyerly skills. Nobody has a lawyerly career like this where you know on the one hand he was a magnificent appellate lawyer. He argued i dont know, 25 cases to the Supreme Court in won all but three of them. He was also a fantastic trial lawyer. He roamed around the American South when it was not easy as a black man to travel around the American South, appearing in the smalltown courtrooms, where you know, he and his colleagues were the only black faces, and where they were not treated very often with the appropriate respect, and where sometimes they face real physical dangers, and he had stories about that, but he was a great sort of little town trial lawyer, as well as sometimes coming up to the podium of the Supreme Court, so he had all the skills in one, and it was really something to learn from him. Listening to you, when i think of his opinions, they emphasize the facts. [indiscernible conversation] he cared about the facts, he cared about how law worked on the ground about how law affected people where they live. He did not think that the law as some sort of abstract, you know, he did not think about law as a set of abstract ideas. He really thought about law and the way it met and affected everyday lives. At the same time, he was like a real rules person, so rules, not standards, huh . Yeah, he was a rules guy. There was this one case were all the clerks were ganging up on him because all the clerks were like, well, we have to have fairness. Standards. Equity. He was like, no. He was the rules guy, whether you could, it was a case about whether you could bring an appeal after 30 days or something. It was a title vii plaintiff. His lawyer had really messed up, and you know, through no fault of his own, you know he had filed an appeal on the 32nd date rather on the 30th day. He did not make the argument the days do not matter. Did you make that argument . We said this is not a strict jurisdictional rule with some cut of exceptions kind of exceptions, but he was having none of it. He said all you can expect you know as a person who is, not the person, but society, treats well. You know, may be the minority person, the person who is not privileged, who Decision Makers do not take much respect to, but you can expect they play by the rules, and if they play by the rules, like that is what youre aiming for, to get them to play by the rules. Right . If you did not play by the rules, it really hurt, and you could see that. He would have been so sad he did not see you become i had a big picture of him in my office as solicitor general when i was solicitor general. He thought that was the greatest job he ever had, because for him, it was extraordinary to go to the podium of the Supreme Court and basically, you know, like i am Thurgood Marshall and i am representing the United States. I mean, i think for him it was how far this country had come. Brown v. Board of education would have been nice, but i grant that there were bigger ones. Your time as solicitor general, any favorite arguments . Any ways in which that job has affected her approach to your current your approach to your current job . I was only solicitor general for a year and if you could redo your life, i would love to have been solicitor general for longer. It is a fantastic job. You get to make all the decisions about appeals for the United States. So in addition to just the Supreme Court work, you are really in charge of the whole appellate docket for the United States. And then in terms of the Supreme Court you argued the most important case every month. You know, it is really fun arguing before the Supreme Court. It is very hard because there are nine people and they all competent and have a lot to say, and theyre all trying to speak to each other at the same time they are asking you questions, and sometimes you are just getting in the way up there. [laughter] they are having a very nice conversation, and what you doing trying to get a word in edgewise . But you know, super interesting cases, so you know, i was, you cant say, i am sorry, could you just hold on and wait a few more years . But i would have loved to have done it for longer. My first case at the court was the reargument that citizens united. This had been this Campaign Finance case that started off as a pretty small Campaign Finance case. And it had not gone well for the government. This was in the spring, just as i came onto the court, and one of my associates had done the argument. It had not gone very well. Then on the last day of the year the court issued a reargument notice and said in particular the court wanted to think about whether to overrule two seminal cases about the intersection between campaign on the first amendment. And you could know from the order that basically they were ready to overturn these cases but did not think that it was appropriate to do so without at least hearing argument on the question. So that was my first argument. You had arguments in the lower courts . Yes, i had arguments in district courts. I had never had an appellate argument, because i left practice pretty young then had been an academic, then a government lawyer, and a government policymaker, so it was my first appellate argument ever. And you know, i was kind of aware that it was a big argument , and everybody was going to be watching me, and that was a little bit petrifying. Now, on the other hand, i mean, i cant really tell you that i thought that the fate of Campaign Finance on my shoulders because it was so clear with the court was going to do. Didnt you talk yourself, always talk myself into thinking i can win. I dont think so and this case. [laughter] they issued you know, be prepared, you should argue about whether these two cases should be overruled. This is a motion for reconsideration . [laughter] now. That is what their orders had come to know. Here it is and we are going to hear this case again but next year, and particularly addressing your briefing whether these two cases should be overruled, so i think everybody thought they would just, the answer was going to be yes and that they should be overruled. So i thought the pressure was off a little bit, not to say it was not still a little bit scary , but one of the great things about the office as you work with magnificent people. It is a fantastic collection of lawyers. And you know, so, you know, i, they taught me a lot about you know, we did a number of moots formal and informal. I get up there and i remember i had a few sentences prepared to say first thing before the questions started. I figured people would let me get out a few sentences. I got one sentence, and i think it was an incredibly anodyne sentence, and Justice Scalia, speaking of Justice Scalia, leaned over the bench in this kind of way that he had and said, wait. Wait. Wait. Wait. Four times. [laughter] i have to say that when i once told the story, yeah, i did tell him, but the way i remembered it in my head, he said, no, no, no, no. [laughter] and it turned out that i had heard it wrong and somebody corrected me and it was really wait, wait, wait, wait, but he had some objection to my first sentence, right . Which was something about the history of campaignfinance. But i actually thought he did need a great favor, because he just got me into the argument right away, then it wasnt like i was making a speech. It wasnt like, ok, what is the next sentence im supposed to say or the next sentence. I which is having a conversation or an argument, as the case may be. I found he could be a good foil, because you knew where he was coming from. Totally. If you could capture the point in site we understand what your saying. He was also good, you said like, does it change the way i am a judge, and i would say this. He was good this way. Like he would come at you very hard and tell you exactly what he thought was wrong with your argument, but then he would give you an opportunity to come back and he would listen to you, and you know, its not like you were going to always or most of the time are even more than occasionally [laughter] convince them of anything but he would give you the opportunity to say your piece just as he had said his piece of that is something i do try to remember when i am up there. Because we all have a lot to say and, you know, sometimes my questions are real questions, but sometimes i think for most of us that we are less asking questions and making points that we also want our colleagues to listen to, because it is the first time we ever really talked about a case together, right . Will i go into conference and a day or two days or something, and partly the whole way that argument is structured is to you know, have an opportunity to let your colleagues know what you are thinking before you go around the table in conference. That said, i always try to think , you know, from a lawyers point of view, they have prepared so hard for this, and even if they will not convince you, you have an obligation, i think, to let them get their points out, so sometimes you know i will Say Something and ask a question that wont really be a question. It will be more like a point and then but they will Say Something and and i feel as though sometimes i can tell you six reasons why you are wrong but i try to kind of suppress that. Maybe one. Yeah. Yeah. Do you ever walk onto the bench inside this morning, i kind of wish i were there . Yeah. It is harder than what i do. I think it is a superhard thing to argue in the supreme. The Supreme Court. It is hard to argue in front of nine people who have their particular takes on something. At that time, our arguments have kind of expanded and the amount of time they take. Yeah, what is going on there . We can talk about that. [laughter] but at that time the argument was compressed into one hour so it was usually half an hour both sides, sometimes it was 20 10 30. Everybody was jumping in all the time. Really one of the great talents of the people who argued at that time, i think it is less important now honestly, is being able to make your point in the first sentence or two, that there was, if you are the kind of person who did a bit of throat clearing before you got to the point, well, you are not going to get to the point. So that was a problem, yeah. So we talked a little bit you were there. I was. Yeah, so you know. I disagree with justice marshall. I think the greatest job was to be a state sg. 331 people, you cant make them all happy. I can make the people of ohio heavy. [laughter] how long were you . 3. 5 years. Do you ever feel like you want to get behind the podium . Only if i have two weeks ahead of time, but yes, i miss it. Justice ginsburg said how do you like being a judge. I said its a privilege and enjoy it but i miss being an advocate, but she said without missing a beat, oh, jeff, you are still an advocate. [laughter] [indiscernible] what do you advocate for . I was tempted to say it takes one to no one. [laughter] did she say it is a kind of, like she was making a comment about you, or was she making comment about judges in general . I think she was making a really good point, which i took to be a compliment, and i think the point was, how could you be a judge for a while and not have a perspective, and of course that is what she meant, you are advocating my perspective when there is something gray. That makes perfect sense to me. You will not be a blank slate every case, and so i did not take it as a compliment initially, but i am so good at rationalizing, i turned around into thinking, oh wow, how thoughtful. [laughter] so we talked about Justice Scalia and disagreement in the objective to not take it personally, hard to do but it is really good advice. Is there anything else you could recommend to Lower Court Judges . You know, come the other 970 of us out there. We, and really focusing on the court of appeals judges for now anyway, because we will be the ones with disagreements, so we will sit in groups of three, so the 200 of us, you know, we still have disagreements. That in the Supreme Court. I dont know if you have any former clerks becoming court of appeals judges. Bingo. What would you say to him or her about how to be yourself, dont be afraid to advocate for what you think is right, but be a good colleague . Because you cannot be a oneperson show on a threeperson court or 16member court. What would the advice be . J. Kagan well, i guess i dont think of them as in tension with each other. I think you can be a good and strong judge and also a good colleague and thats in fact part of being a good and strong judge. I think people make different decisions and have different perspectives on, in my court anyway, about how frequently you write separately. Im an institutionalist so i do not write separately all that often. I write dissents when i need to and i hope i write strong and powerful dissents and iv that as an important part of what i do and i view that as an important part of what i do, but i dont i try not to be, you know, if you look at how many separate writings people have, usually i am pretty low down, because i guess i think that to the extent the court can, the court should not be fractured. I think that confuses matters for lower courts trying to figure out what we are saying to them. I think its basically not about individual judges. I think its about the court as a whole and the law so i try not to be the kind of i have this to say about this general matter. Other people disagree. We have a whole wide spectrum on the court about people who sort of say i want to express my individual point of view even when i joined a majority opinion or Something Like that, so there are different ways of being a judge in that sense. For me, its important i think the Court Functions best when its functioning as something of an institution rather than nine separate. Jeffrey one thing thats part of being an institutionalist is stare decisis, what you call doctrinal humility. Jeffrey one of the reasons j. Kagan its one of the reasons why we have stare decisis. I guess that particular point is just that, that its easy to get on the court and think what were they thinking and that has to be wrong and my perspective is better so im going to do my do things my way and one of the things story decide to stowe is tell judges dont be so fast saying that, that theres a kind of wisdom of the ages and if judges do something differently you should ask and ask again are you so sure . Do you have a right . Maybe those people were right and you should scrutinize it carefully. Thats not to say its a rigid, adam rigid, automatic rule. There are reasons to change precedent, mostly having to do with changed circumstances. Life goes on. Sometimes things come to a past where you have to say a rule has to be changed, but you should approach that with a fair bit of an am i sure . Attitude and humility. Stability is also important for the law. People rely on long. There are reasons to keep law as it is even if it is not perfect or right because you will be upsetting peoples expectations and reliance and trust. Thats another reason why stare decisis is important. Yet another reason is because when the court goes back and forth depending on individual judges who come on and then they say, well, they were wrong and we will do it differently, and then another judge comes along and they say, well, they were wrong and we will do it differently and the law flipflops and it does not really look like law anymore. It looks like a form of politics. Its important for the Supreme Court at this time that law should not look like a form of politics where just because the composition of the court changes, a whole batch of legal rules change with it and indeed our legal system changes. You know, what was once a right is no longer a right because the court is different. I think thats very damaging to the court, damaging to society, but going back to where we started, it is, in it is, you know, a doctrine of humility in the sense that you put a robe on. That does not mean you will make the right decisions. You should always say to yourself, are there people if people have seen it differently for a long time, am i so sure i am right . Jeffrey you occupy the seat Justice Brandeis occupied, one of my favorite justices, one of the most wellknown supreme Court Justices. In the early 1930s, before fdr kind of changes, nationalizes, so many things you know, he had his famous laboratories of extermination. Brandeis was a progressive. He thought the state had a role to play in economic and social challenges. He is prefdr and probably responding to lautner. Do you think it still has a role or that was then and this is now and things are different . J. Kagan i feel i should not be answering that question because you have written whole books about this. Jeffrey it shows remarkable patience for me to wait this long into the interview to talk about the one thing i know something about. So i am trying to pin you down. And you are not going to j. Kagan the answer for you is yes . Jeffrey the answer is yes. We have many tricky problems we have as many tricky problems as the country faced when brandeis was around. It is dangerous to nationalize things too quickly whether through legislation or court decisions. It is important to point out he was referring to legislatures, not state courts, but i would take the view i would be curious j. Kagan we had an argument about this. Im a little bit fearful of going further. Jeffrey the question presented at every turn in American History is what should be national and what should be local . J. Kagan yeah. Jeffrey but i guess theres an option for localism from time to time. J. Kagan the question is at what times . Jeffrey how about for progressives . J. Kagan from time to time. Then the question is what times . Jeffrey you are so evasive. J. Kagan i hear this morning echoing in my head. Like, maybe we should go to a different question. Jeffrey i hear you. This is different. What would you be doing if you had never been a law professor, never a judge, never an advocate . So you have to take your parents in professions your parents professions off the table. J. Kagan i went through a lot of things. There was a moment in time when i thought i would be a doctor but i could not stand the idea of taking all those premed courses. Jeffrey did you take any . J. Kagan a little bit. At one point, i was going to be the worlds greatest tennis player. Jeffrey i did not know that. J. Kagan i was not you know, by a longshot. I think when i was in college i thought seriously of getting a phd and becoming a historian and then i did my thesis and spent a lot of time at an archive and decided maybe that was a little too cloistered for me and i wanted something where i would feel a lot of intellectual stimulation but also feel as though i was part of the world. So it works out. Jeffrey i think im the only person in the audience that has read your masters thesis and it is so good. Its about j. Kagan why did you do that . Jeffrey the audience knows the mapp exclusionary rule. I really admired it because you had not gone to law school yet and i always suspected you supported the exclusionary rule. Of course, Justice Brandeis hinted at the idea many years before, but the essence of the thesis was to critique it. J. Kagan they could never find a good reason for it. Jeffrey which is consistent with the judge he became. J. Kagan how is that . Jeffrey like Justice Scalia, someone who cares about reasoning and not just an outcome you like. I think its terrific. J. Kagan what are you, like, one of the three people in the world who has read that . Jeffrey we live in a world where you can get these you dont have to travel, take it out of the library. I think a lot of people have read it. I have seen it cited. It is really good. I dont think you have written about that. I dont think you have written yet about the exclusionary rule. You have got to do that. J. Kagan i have no idea what i said about it 30 years ago. Jeffrey you need to go read it. J. Kagan they must have been 40 years ago. Jeffrey what did you want to do if not be a lawyer . J. Kagan i wanted to be a professional athlete. And look at me. School teacher did that for a while. Then i wanted to solve the middle east crisis. Jeffrey where were you born j. Kagan where were you born . Jeffrey saudi arabia. J. Kagan why were you born in saudi arabia . Jeffrey my father was born in jerusalem and we are losing track of the point of this interview but he was born in jerusalem to missionary parents so he grew up in the middle east as well. I thought i would solve the palestineisrael crisis. It is sadly still there. We have a bunch of Supreme Court fellows and younger lawyers. I dont know if this was true for you. I was paralyzed with choices about where to go. Any advice about those first couple choices . You did private practice a little bit, then you were teaching after clerking. Any advice to Young Lawyers about how to think through these next steps . J. Kagan it so depends on individual personalities. I did do a lot of Different Things. After clerking, went into practice, teaching, back into government work. For me, that was important, actually, that i loved that variety, that i love feeling as though i had done a lot of Different Things and my skill sets were growing and that every time i felt the learning curve had flattened, there was an opportunity to do something new and different, where i could, with the learning curve when the learning curve shot up again. That for me was important but you might ask how does that work in my current job and it does not. So its good that i got my current job later on in my life. But other people just find one thing that fills them with a lot of meaning and joy and purpose and they do that further entire legal career that for their entire legal career. One of the things i used to tell students, i used to think law students planned too much. They would say i have to do this. By dont really want to i do not really want to do this but thats the way you get to the next thing. They had their whole lives planned out. And i guess for me that is not the way life worked. So much of what i did in any given moment was not because it was on a grand plan but serendipity happened and all of a sudden i had an opportunity to do something that i had not really considered and i thought that would be something i would learn something and have a good time doing that. So i always tell people plan less and keep your eye out more for unexpected opportunities. Jeffrey you mentioned the stage when you were both dean of Harvard Law School, teacher in chicago and harvard. Did that approach experience change your approach to judging at all . J. Kagan the thing that most affects my judging from being an academic is not the Academic Work i did but the teaching. And when i write an opinion, what i think about is how i would teach a class. I think you are doing much the same thing. You are trying to take these difficult concepts and sometimes arcane subject matter and you ask me before about who my audience is and i guess my audience is smart people, interested people, people who dont know a lot about a given area, and thats the way i used to think about law students. Smart and interested but when i walked into a class they did not know a lot about it. So when you thought about teaching, i thought about how am i going to explain these complicated concepts in a way that people will get and also in a way that will stick with people. I think different ways of speaking and writing can be sort of sticky or not. So thats how i used to think about teaching and the same thing i think about when i sit down to write an opinion. This is complicated. What kind of story am i going to tell . What kind of story was i going to tell in a classroom and what kind of story will i tell on the page to make people understand what the problem is. Jeffrey i had no experience teaching law before being a judge but i will say teaching law after being a judge, if i think of the areas where im not inclined towards stare decisis, or, obviously as a lower court judge, we would follow it, but i would be liberated about critiquing a doctrine having taught the doctrine and seeing students try to figure out j. Kagan struggle with it. Jeffrey or seeing Lower Court Judges struggle with it. Thats probably the area where i would like to think im trying to be humble, but if you see something that no one else can figure out, i feel like thats a good time for us to at least identify it. I think teaching can be super helpful there. I think you are close to your 14th year. J. Kagan this is my 14th year. Jeffrey as a justice. Is there a way in which theres been live and learn changes . If you are preparing the first couple years of how you worked with your clerks, interacted with each other. J. Kagan i guess some things have gotten easier just because they do get easier. Things that took a long time i first year dont take so long now. But i actually think i am pretty much the same person doing the same job. The court has changed and my role in it has changed some but in terms of the way i think about judging and the way i do judging, i think i am more stable than not. Jeffrey and writing is the same . You started as an institutionalist . Thats impressive. Justice stevens was one of the people who wrote separately the most. That did not affecting . J. Kagan i guess i dont feel the need like, i have a thought here and i have to tell the world about it. I tell my world about my thoughts when i have a job to do, a majority to write because someone has assigned the majority to me, or when i have a dissent to write because i think the majority has gone wrong. There are times when i will read somebody elses majority opinion and say i would have done something different. I would have stressed this rather than that. Theres an additional point that i would have put in. I guess i try not to do that. I think it is not about me. It sounds a little bit like im patting myself on the back but im part of a Group Project and it works best when we act as an institution, which sometimes we are incapable of doing. But its good that we do. Jeffrey its difficult or you have to do a lot difficult. You have to do a lot. Anything to recommend to Lower Court Judges . J. Kagan i think you should tell us stuff. I do not say this to flatter anybody but i think you have much harder jobs than we do. I mean, i think week, number one, have incredible lawyers at the Supreme Court. Almost all the lawyers to come up to us are fantastic. Jeffrey does that not make it harder . J. Kagan no. You read these great briefs and arguments and you have all the raw materials. The other thing we have that you do not have is all we have to decide is basically a single question. Jeffrey i have to clarify. You dont have to do anything because you get to decide what you decide. J. Kagan that is true too. We will put that on the list too. And when we do, we sort of distill the case to a legal question, whereas you have these cases and they are messy and there are all kinds of questions and they are colliding with each other and different people want you to answer Different Things and you have to make sense of messy stuff in a way that i think we less frequently do. And then we write these fractured opinions and do not tell you. Thats why im against that. Jeffrey you have everybody on that. Not that we want eight justices but i did notice a court that had a lot more unanimity when you had only eight justices. I dont know if you remember this was post Justice Scalias death. J. Kagan it was a complicated time for the court. I have talked about this before. Theres something to be said about a court with an even rather than an odd number of justices because it forces compromise where you dont think it is possible. And sometimes, it led to some that show little bit of silly decisionmaking some a little bit of silly decisionmaking. We would find some way to agree on something that nobody cared about and that was not the real question and it was not an important question. There were times when it felt a little bit silly but there were more times i thought, many more times, when it actually felt as though it forced us to have a conversation that was useful and valuable and that did produce greater consensus, and what usually meant was that, even when people disagreed profoundly on big stuff, they can usually find smaller stuff, so if you ratchet down the importance of a case or a question, you can usually find something to agree about, and theres value in that, just making something smaller so you can agree on more and send a signal about the possibility of agreement in law. Jeffrey it is not a Supreme Court if it is 44. That means the lower court is affirmed. J. Kagan we try not to do that. As i say, i thought it led to some really great conversations among the justices. You know, because when you go around the table and come out 54, people stopped talking at that point. They have reached a decision and whats the use of banging it around more . But when you come out for out 44, there is benefit to keep talking, and when you kept on talking, it was not just that one boat would change. You would often find a way to reformulate the question or just, you know, even if not that, just a way to think about something from a different angle so that many more people could agree. Jeffrey yeah. We just lost Justice Oconnor. Im trying to think. Did you know her . J. Kagan i did not know her very well. She was off the court by the time i became solicitor general. I knew her a little bit when i was a law school dean. She came to harvard a few times. You know, she gave me some advice when i became solicitor general and when i became a justice but i did not know her very well but i had an enormous amount of respect for her and what she did as a justice. Jeffrey are there any legacies at the Current Court that are Justice Oconnors . J. Kagan its hard because i think some of Justice Oconnors great moments have been abandoned by the court and its a little bit maybe a swing justice who was extremely important in her own time because she was making the calls in some extremely important areas and the courts composition changes and it turns out jeffrey fewer case decisions. How about culture . J. Kagan i think notwithstanding the reason i have such enormous respect for Justice Oconnor is she was in this sort of unique situation where she was making the calls on pretty much every important decision that came to the court and, in our country, most of the important decisions come to the court in someway, and if you said that to somebody, like, all the important decisions will come to this one court and then there will be this one person who just so happens to be in the middle of the court who is going to decide it, somebody would say, well, thats the craziest constitutional system ever. Why would you have a system like that . The thing about Justice Oconnor, i feel, is that she made it work. She made it work because she had an incredibly good understanding of the American People and she had an incredibly good understanding of the nation, of what the american experiment meant. She was probably not the justice who had the most sophisticated set of ideas about judicial methodology or anything like that, but she was a person who really got what the court could do and what it should not do and who really who was able to sort of chart a path where people thought those outcomes are probably the right outcomes. And i think she left the country much better off than she found it. She left the court much stronger than she found it. And what more can you ask of a justice than that . Jeffrey yeah. In addition to Justice Scalia, i worked with justice powell. Not asking you to comment on this but it seems to me a sad reality there is no world in which someone like that gets on the court today, where someone either does not have opinions about law, justice powell, just a lawyer. Justice oconnor had been a judge but she did not chart it out, where she was on most things, and it seems like a loss to not have people like that on the court. We do have them on the courts of appeals for what its worth. There are plenty of them out there but the Selection Process has gotten so intense, you have to none of your answer with Justice Oconnor has to do with being first. Is that because thats now irrelevant . J. Kagan it is extraordinary. She gets on the court and she is the first and she had the type of background some of her colleagues had not the type of background some of her colleagues had had and it turned out she could do a better so she showed them. Jeffrey she was a great questioner. She started things off so you knew where to look as an advocate and it was always straightforward. The visual cues were usually quite clear whether she liked the answer or not. J. Kagan what did she do . Jeffrey she was not afraid to frown. Im not saying it was a mean frown but it was not a smile. It was good. You said but Justice Scalia the downside is he did not let you do more than one sentence. The upside is you knew where he was coming from and listened when you gave your answer and he was clearly and she was clearly and everyone was listening to her question. So then you would have a lot of reverberation from the question. Justice kagan, the country is lucky to have you as a justice. The fact that you chose on the day of one of the biggest cases j. Kagan i did not really choose it. Jeffrey no, no, no. Everything is a choice. Even up to 3 15, i wondered, and you put a smile on your face and came over here. J. Kagan the country is lucky to have you as a judge. An esteemed court of appeals judge. Thank you for being the person in the other chair. Jeffrey thank you for doing this and thank you for your leadership on the court. J. Kagan thank you. [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] [captions Copyright National cable satellite corp. 2023] j. Kagan thank you very much. Washington journal. Our life form involving you to discuss the latest issues in government, politics, and Public Policy from washington dc and across the country. Friday morning, retired navy cap being captain jean moran on the military strategy in the u. S. Strikes in iraq, syria, and yemen and if they have been effective. University of texas constitutional law professor discusses impeachment as a political tool. Washington journal. Join at 7 00 eastern friday morning on cs and, cspan now, or cspan. Org. Book tv. 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