My name is matt and an associate professor of policy and government and director of undergraduate program in philosophy, politics and economics. Ppe here at george mason. The ppe program is honored to be the institutional sponsor and host of the Roger Wilkens lectures. We are grateful for the trust and support placed by the university. The attraction between the pgd ferdinand of these lectures im glad you asked. I spend a fair amount of time explaining what ppe is and what makes the program unique. I can go on. Really, i can go on but today im going to go straight to the bottom line. It explained that the scope helps students that create Better Solutions through the difficult and pressing problems that arise in the public life of a complex society. The problems that arise in the process in what Roger Wilkins in the first chapter of his autobiography had called with immense understatement complicated at times such as there are today. Ppe offers the foundation for students to build meaningful careers in civil service, journalism, business and the law and other socially engaged fields and endeavors. In this regard its my hope that the generations of students will set their sights on the example set by Roger Wilkins life and career. Again, we couldnt be prouder of our association in this legacy. I have three brief Program Notes to make before turning over the podium. The first is you are going to be able to find an archive of this event as well as past lectures and future lectures and more information about the program on the website which is ppe. Gmu. Edu. Dont take pictures pictures of consideration of those around you. At the conclusion of the event im going to ask you all to hold your seats, and we will allow Justice Kagan to leave first and then we can followup after her. Without further ado, it is my pleasure to introduce the president of george mason university, president anne holton. [applause] anne thank you, professor, and thank you all. What a great crowd. Its a delight to see you all today, and i invite you to join me in extending a warm welcome to Justice Kagan. We are thrilled to have you here at this access to excellence. We are so proud of george mason and one of the things we are proud about here at george mason is 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 that, well, Roger Wilkins had a lot of Important Roles in his life, but we like to think that his most Important Role was his 19 years of service here at george mason university. Mentoring and fostering the growth of young minds and lives is a professor of history and culture, the program is one that honors our most distinguished professors and i believe 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 a few other things in his life. He was the first africanamerican in a 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 Act of the era. He was at the Washington Post and New York Times editorial role and he was at the Washington Post during the watergate era and wrote some of the important editorials that shared in the Pulitzer Prize for the team won for that work. So, we are excited to honor him today through this continuing lecture series and we are 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 share our undergraduate and graduate alma mater. We are both princeton undergrads. She wrote the daily princetonian, which i read at harvard she was on the wall review, which i didnt read. [laughter] and then we went on to have a significant overlap in our professional lives as well with a judge on the juvenile and Domestic Relations District Court for the city of richmond is literally the baby court in every way, and she as you know is a justice on the highest court in the land. Even though the courts are quite different, there are some significant overlaps and they are both all about the rule of law. The judges get all excited about the rule of law and not everybody quite understands that all the time, but the fundamental part of the fundamental essence of the rule of law is the principle that all rules apply equally to everybody. So, it is fundamentally about equality. When you travel in other countries. As i have the occasion to do in life where the rule of law doesnt apply, where courts will where there isnt an independent functioning judiciary, where people in certain parties or groups dont have to comply with the above rules others have to comply with, you remember the importance of this thing we take for granted in our system, the rule of law. One of the consequences of having an independent judiciary system as we do is the judges cant always speak freely to defend their positions and they sometimes have to take unpopular positions because of the rule of law so dictate. And yet they can only speak for their opinions. Therefore it makes it extra special to have an opportunity to hear from the justice here in an academic setting where we can hear more about how the whole system works so im very excited to hear her conversation today. Before i turn the microphone over, i want to acknowledge that we have professor wilkins wife, patricia, here with us who is a retired from her role as professor of Georgetown Law School and served in many other Important Roles as well. His daughter amy is with us, also a great advocate especially an advocate for children and families and all kinds of important opportunities, and most especially i am delighted that we are here with a chance to welcome his daughter elizabeth who will be following me on stage in just a minute. Elizabeth is the senior counsel to the dc attorney general. She is a yale undergrad, we will forgive her, and undergrad, but most importantly today she had an opportunity to clerk for Merrick Garland on the dc court of appeals and then for Justice Kagan at the court. For those of you that have any inkling of that, the law clerk to judge relationship is a very important one, partly because judges are so isolated. Your clerks are your family, they are your when i went to going to the world, and i know that elizabeth is thrilled to be here with us and Justice Kagen kagan and vice versa. I will hand over to elizabeth wilkins. [applause] elizabeth good afternoon and thank you for that introduction. It is a 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 these two intellectual giants and who have dedicated their career to public service. Above all else, our dad taught to us, his students coming in freely to 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 firepower to bear on major questions of justice in his lifetime using whatever position or power he had in the service of those that have less. He did that most elegantly have with his pen writing time and time again the calls to evil what he saw around him. Justice kagan in her term spent a career putting her talent to work in service of the public good and expects the same of others. I can tell you i remember when i was interviewing to clerk with her, she noticed i worked for the Obama Administration at the time and i wasnt much older than many of the people in this room and she asked me one pointed question about the experience, what was the most important thing that you did for your country . To be clear, i was like 24 at the time i was working the Obama Administration so i felt a little overwhelmed trying to answer this question, but that is Justice Kagan. She has high expectations. There are no wallflowers, no waiting around. You better show up and get things done no matter what your position is. That certainly has been Justice Kagan throughout her career. A born and raised new yorker, she attended princeton, oxford and harvard law before starting her career as a law clerk first on the dc circuit and then to Justice Thurgood marshall. She stopped briefly before moving to academia as a professor at the University Law school. She then was asked to come into the Clinton Administration for the associate white House Counsel and been domestic policy adviser. She went back to harvard law as a professor and became the dean where shes widely credited for institutional reform. President obama then appointed her to be the first female solicitor general of the United States and then quickly followed up by appointing her to the Supreme Court. Two less well known but nevertheless very important achievements, Justice Kagan was the dean who brought free coffee to harvard law and frozen yogurt to the Supreme Court which i appreciate very much. In all seriousness, i was extremely fortunate to have clerked for a person like Justice Kagan. If our father taught me how to be passionate, dedicated to service, Justice Kagans chambers taught me diligence, tenacity and commitment to excellence necessary to give her absolute all. I will not soon forget going to work before 5 a. M. When the moon was still high when working on an opinion, but i also will never forget what it seems to take your responsibilities responsibilities seriously, to turn over every stone and to pursue every line until you are sure youve gotten things right. Like our god give you could good dad, shes known for the power of her pain and every sentence is in place to construct the most sustained argument and possible. Her commitment to writing accessible, forceful and exceedingly well reasoned opinions for parties in the case, for the court, and for the development of our law is unparalleled and we are all lucky to have her. This afternoon, Justice Kagan will be in conversation with Steve Pearlstein to whom our family is extremely grateful, and he has been the driving force behind these lectures honoring our dad and like my dad, he was is a professor here at george mason and like our dad, he is a semireformed journalist originally from massachusetts he started out as a tv reporter and even started his own political magazine before coming down here to work at the Washington Post. He won a pulitzer for his reporting on the coming financial crisis before starting here in 2011 where his dedication to his students, to the institution and to learning is ever evident. I look forward to a great conversation. Thank you. [applause] steve good afternoon. I dont know whether any of you saw this, elizabeth has great red shoes. Next year im going to wear my red shoes. [laughter] thank you all for being here and thanks to you, Justice Kagan. Justice kagan it is an honor. It really is an honor. First off, i do everything he elizabeth asks me to do or tells me to do, but this one was a really special privilege and treat because you know, i never had the opportunity to meet Roger Wilkins. I feel as though i know him through his daughter and his wife. He was such a superb educator and journalist and lawyer and most of all, public servant. Its great to see you carrying on his legacy, elizabeth, and its great to be here for this event. Steve so, there were a lot of undergraduates and some law students here. This is a very diverse campus. People from all sorts of countries and all sorts of walks of life and classes but they all have one thing in common. They are all in massive anxiety about their careers. [laughter] Justice Kagan chill out. [laughter] steve so, lets talk about careers, particularly yours. Harvard law school, law school, white house, dean, solicitor general. Was there a grand plan . Did you plan that whole thing out . Justice kagan yeah, it was all written down. Thats a joke. Come on. [laughter] steve in high school though you appeared in your yearbook wearing a gown and holding a gavel. Was that just coincidence . Justice kagan a bunch of us raided the costume closet in the Drama Department and that is how i ended up, but i had no idea i was even going to go to law school before basically the year i went to law school. I guess my view of the way things have turned out is that most of it was serendipity and unplanned. College students, law students, they tend to plan too much and the best advice you can give people is planning some is good and important, but its really just keep your eyes open to opportunities that might just pop up, because i think most of life happens that way. Things come about that you never would have expected and the only thing you have to know how to do is how to grab those opportunities when they do arrive. Steve and figure out the good ones from the not so good ones. Youve had some setbacks. At one point, you were nominated to the dc circuit by president clinton and as it sometimes happens, you didnt get a hearing or vote. At one point you were a candidate for the president of harvard. Tell us about those disappointments. If you had gotten those jobs you might not be sitting here today. So how should we think about this kind of disappointments . Justice kagan those are high cost of disappointments. [laughter] you know, i also had some. The funny thing about if somebody looks at a resume that has all these great jobs on it and it doesnt have all the jobs you didnt get. There are 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 you know, the example that you gave about the dc circuit judge schiff is a good example of that. When a door closes someplace, a window opens. That might be magical thinking that it happened often enough but i believe it. Sometimes the disappointments are the best things that ever happened or could ever happen to you and that was true for examples of the judgeship. I was nominated to be a judge minus 39. So i would have been very young and i would have spent my entire life on the court. I love the work i do, that when i look back on it, i think you know, instead i had a decade where i did many other things and i developed lots of different sorts of skills. Now i am a judge, so i get to that, too. It was a good thing i think that happened that i had an opportunity to explore some things i never would have had a chance to add that come about in the way i thought i wanted. Steve can you convince yourself of that at the time or is it hard to . Justice kagan its hard to convince yourself at the time. I went back to teach, and i love teaching. Ive always loved that. And then just a few years after that, i had the opportunity to become the dean 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, do required you to be a person i didnt really expect myself to be and to develop all different kind of skills. It was a very steep learning curve, which the jobs i like are those that require you to learn all kinds of new things. It was a great decade before i got to where i am now. Steve so lets talk about the law. What did you learn about the law and about judging from Justice Marshall . And i should say that you were one of Justice Marshalls last clerks. Roger wilkins was one of his first out of law School Working for Thurgood Marshall before he was the justice when he was a legal defense. The line goes from marshall to roger to you to elizabeth, and i hope beyond. So, what did you learn from Justice Marshall about the wall judging . W and Justice Kagan mostly what you learn from Justice Marshall is how people can advance justice. 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, civil cases, he did you know, one day he was arguing before the Supreme Court, and the next day he was on a train down to some small segregated town in the deep south where, you know, he was fighting to defend somebody. A lot of the cases he did with Death Penalty cases in front of all white juries and it was hard to win cases. Everything he did, whether it was the big cases, the kind of brown v. Board and developing the entire strategy, and whether it was the small cases, which was just making sure that individual defendants, not so small individual defendants got the justice they deserve. 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 storyteller. He told stories about his life. In said i clerked for him one of his last years. Health. Ot in the best sometimes. K back we did a lot of usual things that clerks and judges do when we would talk about the case and at some point he would segue into story telling mode and we would here about childhood and about his time at the law school and developing within the law school and the strategies led to brown v. Board and the eradication of jim crow and we would hear the many cases and he lesson in American History and the lesson in american law. Inwas a lesson most of all how one person can do justice. Nobody is ever going to be Thurgood Marshall. Thurgoodver be marshall and probably nobody in this room will ever be Thurgood Marshall but still, you can take away lessons about your own life, about what makes something worthwhile, about the kind of goals you should set for yourself and about the kind of good that people can do. Is there anything about judging or being a justice that you learned from him . Perhaps you can see it more clearly. Times andre different we are different people and i would never say that i am the same kind of judge as he was. Different times, different circumstances, different personality. But i suppose one thing that i really appreciated at the time was the way he treated his clerks. Too becausekmaster, you can tell from elizabeths conversation that i am kind of one. He never you never didnt know who was boss in that chamber. Sometimes he would say you have to do this. Vote this way or you have to join the so opinion. He would say there are only two things i have to do. Stay black and die. [laughter] which sort of shut you up. And sometimes, you would Say Something and he would say you see that commission over their . It was a commission with Lyndon Johnsons name on it making him a Supreme Court justice. Make us geterally out of the chair and walk over to that commission and repeat which name was on that commission. [laughter] , he really time respected his clerks. And he thought 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. I dont have the stories that he has. 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 that is not on the court today that is your model . And if so, why . I guess Louis Brandeis is the person i would pick for that. Chairally sit in the same as Louis Brandeis did. On the dais . On that because we change chairs as we get more senior but the court actually has this tradition where you know who set in each chair. It depends on who replaced whom. For my seat, its me and then the justice i replaced who is absolutely superb judge and man who, unfortunately passed away last year at the age of 99. An unbelievable life. And then prior to john Stevens Douglas who also served the court for many, many years. I call the chair i said in, the longevity chair [laughter] because everybody who holds it seems to be on the court for 30 plus years. Back ise three justices justicebrandeis is brandeis who is nominated to the court around the time of a little bit after world war i. In a verythere distinguished and noble, i think way. He was a brilliant, writer, my favorite opinion of all time is written by him. Which one was that checkup its an opinion about the First Amendment and why we think of the First Amendment as so important. Its not there were two justices at that time who were magnificently about the First Amendment. One was Justice Brandeis and one was justice holmes. Had some of the language we know about today, the marketplace of ideas and his was a very commercially oriented understanding of how the First Amendment operated, that ideas andin this marketplace whatever prevailed in the market was what will prevail. Brandeis had a much more poetic understanding of the value of free speech. Forink the opinion everybody to read, if you go home and want to read a judicial opinion, its concurring opinion in a case called whitney. 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. Democracy. Its very beautiful, its the kind of thing that makes you cry. But its also, it appeals to americas highest values and i think thats what Justice Brandeis pretty much did all the time. He had a very deep understanding of the 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. A policy was very much reformer in massachusetts. He was before he became a judge. So he wasnt always although there was always law involved. I want to ask you about the interview process. You interviewed with president obama twice. I guess the second time was better. [laughter] its not actually true. The second time is not better. Is probably the one that left the impression and you probably left a good impression and thats why you are here but what do president s ask you . What are they looking to find out when you have these conversations . You talk about the weather, you talk about family . What you talk about . We chit chat for a bit. I had two interviews and one was the vacancy where Justice Sotomayor got the job. I had just started as the solicitor general. I had been there for maybe three months and all of a sudden, there was a vacancy because Justice Souter left. And i was put on the short list. May be the president interviewed for people, Something Like that. We didd in and maybe some chit chat but we mostly talked about he asked me what i have learned since i had become solicitor general and we talked about the court mostly. I think we talked about my ideas come about constitutional interpretation, statutory interpretation, how to do law, how to be at. The judge but i remember a lot of it that we talked about, my sg experience of the kind of arguments i made and why i made them. And what i thought of the court after having watched them for a number of months. That was my first interview. I did not get the job that time around. Me ent obama called another highclass disappointment the president called me and said he was giving it to Justice Sotomayor who had been a fabulous judge for many years and is now an esteemed colleague of mine. But he sort of said, maybe there will be another chance and he was incredibly gracious and lovely even as he turned me down. Then, the next time i interviewed within which was a , thats when John Paul Stevens retired, it was a crazy day at the white house. The second one was not as good as the first. I walked in and it was the day of the bp oil spill, if your member that day, and the president had other things on his mind i think been to interview me and i walked in and set down. And sat down. It was late and he had had meetings and there was a real emergency. Made some time in his schedule to see me and i walked in and he said, i know you, we dont have to do this. [laughter] how did that feel . It didnt feel all that great. I know there were bigger fish to fry that day. But anyway, that worked out pretty well. He called me a few weeks later this time he offered me the job and he remembered this was a far better conversation than the last. To see the go senators as you do when you get nominated and you have to try to see all 100 as a courtesy matter, they profess to care a lot about things like abortion and guns and stuff. When you go in, or do they say what will you do about the Second Amendment or abortion . Do they come right out and ask you how you will rule . How do they get at that indirectly if they dont ask directly . A few do that but they dont really get anything. Because there are rules. Youre just not going to tell them how you are going to decide a case they want to know how you are going to decide. Ways to askout about a subject they care about, maybe that is not so direct. You mentioned guns. I would think any subject, that i would think any subject, that was the one that had the greatest number of senators asking me about, more than abortion, or religion or any number of hot button issues. ,oth republicans and democrats the various important Second Amendment decisions, heller and then mcdonald were pretty recent. Mcdonald had just been the year before. Senators have constituents who care very much about this issue. Scream, like, not yeah, you know. [laughter] east side of new york or west side . Exactly. Here is what a lot of them did. I know i cannot talk to you but i want toses know that you understand this issue. Have you ever hunted . No. Do you know anybody, does anybody in your family hunts . No . Do you know anybody who hunts . No. Have you ever seen a gun . [laughter] i was pretty pathetic with all these questions. I was feeling pretty bad about being sympathetic. Its right and proper that senators should ask about these things and a lot of them 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. So im sitting there one day with a senator, the senator from idaho, i wont say his name but there are only 2 [laughter] out there and he is a great hunter himself when he was asking me these kinds of questions about hunting and how important this was. Too many of the people who lived in the state and could he tell them anything about my understanding of this issue. , it was late him in the day and i was feeling a little punchy, and i said senator, i have not had the opportunity to have these experiences. This is not what we did on the west side of manhattan. But i understand why you are asking me about this and if you would like to take me hunting, i would be really happy to go. Thats pretty good. I would say this look of abject horror [laughter] passed over his face. The white house aide who was accompanying me during all this was sort of holding her head in her hands. I realize that i probably went too far. I tried to reel it back and i said, senator, i didnt mean to invite myself. But i will make you a promise, that if i am lucky enough to be confirmed, i will ask Justice Scalia, whom i knew to be in avid hunter and whom i had gotten to know through various things before, i will ask Justice Scalia to take me hunting. When i got on the court, i told this story to Justice Scalia who thought it was hilarious. And immediately. Scheduled the date [laughter] 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 per year until he died. Birds or dear . Almost all birds, quell and pheasants. Once we went out two wyoming to shoot deer and antelope. We each shot a deer but neither of us shot and antelope. Once we went down to mississippi for duckhunting. It was mostly birds so this process of confirmation he didnt you didnt expect me to have hunting stories, did you . It turned out i quite liked it. I wouldnt have kept going back if i didnt. He wouldnt have minded if i said i tried that once and i took care of that promise. Some amount of drinking that goes along with hunting . No, people are very serious about gun safety. Only afterwards. [laughter] so this process of confirmation has gotten, shall we say, a little politicized and polarized. See how we can back out of that . Confirmation, one polarized confirmation leads to another and another. Its sort of like the hatfields and mccoys at this point. Nominated, you were there were 37 senators who voted against you. That seems extraordinary. Why do you know that and i dont know that . It seems crazy. I have a sense that maybe a few of them thought you would be too liberal but i have a funny feeling at this point is what makes it worse is what sometimes we to call on capitol hill a cheap vote. Its easy for a republican to vote against you and they know you will get confirmed so they get the best of both worlds. You get confirmed and they get to say they voted against you. . Ow do we back out of that that sets the whole thing up in a polarized and partisan way. Its really not good for the court legitimacy. Is there any way to undo that . I dont know and im not in the position to be able to wave a magic wand and do it post up there is a lot of history and a lot of water under the dam and everybody feels victimized by everybody else. Past time its long to stop that. I think everybody in the court feels this way. There are times not so long ago when Justice Scalia got confirmed by a 980 vote, when Justice Ginsburg got confirmed by a similar margin. I think it was 971. Justice breyer the same. This is a relatively new phenomenon. And it is now thoroughly bipartisan in a bad way. Republicans, for the most part, did not vote for me or Justice Sotomayor your. Garland ere judge democrats to not vote for Justice Alito are justice gorsuch. Or justice kavanaugh. Its gotten to a bad place. It makes the court seemed 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 they are probably not familiar with the process by which cases are decided. I would like to ask you stepbystep to go through it a bit. Is thatep for a case the Supreme Court has to decide to take it. It doesnt have to take it, there are 6000 petitions, and you choose roughly these days about 80 per year. Is, do youestion read all 6000 those petitions . Not really. Do the clerks rated for you or do the clerks from the jeff and from the Different Chamber shirt and you read the same summaries . Yes, most of the judges, seven of us i believe, are in whats called the cert pool and all those thousands of cert petitions get divvied up and one clerk will get a petition. Each petition is red front to back by the very least one person and the clerk will write up a memo, this is what happens with a couple of justices who do it outside the cert pool do it differently, but the clerk will write up a memo and in my chambers, the ghost of my clerk in my clerk will look at it and annotate it. They will say i agree with it or dont agree with this for the following reasons. Justices get these memos for every case. I will read the ones that i think are serious. You read the cert petition itself . If i think its serious, the kind of thing 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. There is something called putting in a petition on the discuss list. From those thousands and thousands of cases, i would Say Something like a few hundred get put on the discuss list each year. Those are the ones that you read. When you get to the conference where you decide that, do you go through it and raise your hand and if there are enough people, thats it or do you actually discuss it . Varies but i was a there is a fair bit of discussion on most of it. The chief justice will always start. This is the way we do everything whether we talk about the petitions or the cases being argued before us, the chief justice always starts and says how he is going to rule on something. It goes around the table in seniority order. Partitions, its different because the person who put it on the discuss list which is often the chief justice will start but lets say if i put something on the discuss list, i will start the conversation and then well go to the chief justice and then around the table. There is a rule that nobody can talk once twice before everybody has talked wants. This is a good rule especially are a relatively junior justice. Spoken,ch one of us has than we often engage in more backandforth to try to figure up whether its the kind of case we should take. Its similar for argued cases. Whats the criteria for taking a case . N is whetherterio different courts on the country have divided on the issue. Sometime you look at the Supreme Court docket and you say its not all that important, why did they take this case. By itself, maybe the issue is not 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, when it comes to federal law, everybody should have the same law apply to them. You dont want a situation where there is a court ins one part of the country that interprets or replies federal law from another part of the country and to different people are being subject to two different kinds of federal law based on where they live. Thoseurt solves divisions. We take it because there is a split in the circuit, meaning the u. S. Court of appeals. Isot of what the court does really just do that, major there is uniformity in the way that federal law is interpreted and that federal law is applied. And there are also cases where we take ones that are important. Anytime a lower court invalidates, for example, a federal statute unconstitutional grounds, we take that case if there ishink something that congress has done thats getting invalidated by a court, it should be us. It should be the top court. Sometimes, we will take cases just because we know we will have to deal with them at some point. Its the kind of case that affects too many people for the Supreme Court not to resolve a question about it and so we will do it. You ever not take a case because its too hot to handle politically . Not in that sense. I think 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. There are verynk often or times when we are scared of doing this. If its the kind of legal that is the kind of question we should resolve, we do it. Sometimes groups of justices want to revisit an earlier precedent, maybe change at a little bit, they are looking for an opportunity to take a case. Do you defer to them if they want to take it . If you dont think the outcome will be to your liking, do you say i think i will vote against this one . There is not a lot of deference in general. Each of us maker own independent decisions about what kind of es we should take and what and how we should decide them. If there is a case where somebody says i want to go back and overrule something, there are lots of good reasons not to do that. However you think it will come out, well or poorly, that would be a reason. You get to this thing called oral arguments. Before that, you and your clerks read all of the filings in the case. It could be many filings. You dont read all of the amicus briefs . At least one of my colleagues does. Filings andhe party asked my clerks, whichever clerk has the case. That person has to read every single brief. This can be an incredible number. On big, hot cases, it can be upwards of 50. And then the clerk will say to me that these are the few i think you should read that actually Say Something different from what the parties have said. Do you have to carry these papers around with you all the time . There is a lot of them. Yeah, we sort of have technology now. [laughter] i tend to like reading them on paper and marking them up. Then i just 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 figure out how youll vote on the case even before the oral argument . We definitely talk it through before the oral argument. Sometimes, i will come out with a pretty good view of where i will come out in the end but sometimes not so it depends on the case. 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 go through all the arguments. I like them to disagree with each other. If they are all too agreeable, it makes me play devils advocate myself or sometimes i assign devils advocate. I make it clear that i am not happy with the agreement. I like hearing different arguments. To try to figure out which are the ones that sound best. Then you come into oral arguments, you are lined up there on the dais and these lawyers prepare extensively for this and i get three sentence and out three minutes would be a good day. They usually ask a question not about anything they said in those three sentences. Its a little bit changed just this year. We now give people two minutes of on interrupted speech which feels like a lot, actually. , werally, three sentences gave you three sentences today. My first argument which was your first argument on any Appeals Court . Thats correct and it was the reargument of Citizens United i knew that was pretty important. Out. One sentence i was very nervous. I got this one sentence out and Justice Scalia sort of leaned over the bench in this way he wait, wait,aid, wait, wait. Then he told me that this one sentence i have managed to utter, which seemed a pretty anodyne, nonconsequential, was completely wrong. [laughter] but it was kind of grate. I actually didnt mind it at all. I sort of preferred it. This yearwatching these people try to fill up 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. It gets you in the game right away. That gives you something to respond to. I know thats what it did for me. When Justice Scalia challenge me , then you have to go back out it back at it. Do peoples minds get changed by oral argument . Sometimes, it depends on the case. Often thee cases, highprofile cases, pretty have strong people have pretty strong priors and no how they feel about a particular subject in part because they have seen similar cases on the same subject many times before se. So they have developed a feeling about certain way of the law so you will not just have a good half hour at the podium. But there are lots of cases that we do that thats not the case. Where people are coming to it fresh, where people are really engaged by the arguments, people are trying to figure out how to think through a case. A large part of what we do at argument is taught with each other. There is 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. Saytimes your colleagues things that make you think about the case in a different way. They big part of what we do at argument is basically have our first conversation together about a case. We dont meet about cases before arguments so it really is our first opportunity. The next time we meet is when we are in conference and voting on cases and we will really start to vote. Way ourthat is the deliberations are structured, the argument time becomes crucial for judges to talk to other judges and to say this is the way i am thinking through a and put that and everybody elses head to think about in the next couple of days before we actually meet in conference. And a few days later you meet in conference. Yes. You go around the room as you describe and everyone is it a one minute pitch . It varies. Sometimes its short, sometimes as long, it depends what the cases and how complicated it is. It depends of other justices have said things before you. Then you respond to them . If you agree with them, you just say i agree. You dont have to hear it again from me. Often, you respond to them. Want to make points but you also want to respond to other things set around the table. Does the discussion ever change anyones votes . For sure. It depends on the case. Not unfrequently, somebody says i came in thinking this but something another justice said is making me rethink this and i am open to continuing to think about that and open to being persuaded. I remember cases where people would just say literally, it would go around the table and somebody who had already spoken with say, im changing my mind. If somebody change their mind because of something that i said, i would count that as a good day. I think every justice has done that at some point or another. Then there are two sides in the sense after you vote, one to do something, some group of people want to do something and others dont and the senior justice of every side gets to decide who writes it. Do you ever look to people ahead of time and say rude, i would really like to write this one . Do people do that . I dont do it. Does anyone else . I think thats the role of a junior justice. Maybe as you get more senior, maybe if you get more senior, you feel as though youve paid your dues and maybe you ask for a case or two. Whats the criteria that the senior justices will use and how to assign its . Do they want to spread the work around or is it something you know a lot about . What is the reason someone gets assigned a case . Ive never been an assignee justice so im not sure. Probably they think about it differently. The chief justice is often the assigning justice but sometimes it could be Justice Thomas or Justice Ginsburg, it used to be Justice Scalia for a number of years before he passed away. You know who will do a good job on this. We dont have different subject areas. Justice alito specializes in this area. We dont do that. We all write about everything. Its sometimes a complicated process. You have heard 10 or 12 cases and people are all over the map on them and you have to figure out everybody by the end of the year and even in each setting, gets an even number of assignments. You have to figure out how you parcel out these cases given that people are on different sides. Sometimes its pretty complicated. You get assigned to write an firstn, do you take the cut at writing the first draft . To the clerks to the first draft . Do you split it up . How do you divide the work . The way i do it is my clerks to a first draft and then i put it on one computer screen and then i open up a new page on another computer screen and i start writing. As a launching pad for my own thoughts. I use it as a collection of good ideas, a collection of citations but i write from start to finish my own draft. I do that because thats the only way i can think through a case even if i have a very good draft and if im intensely editing. There is no way i understand the case as well as if i just right through it by myself. I do that because i want every opinion to sound like me. 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 serve sound the same. To sort of sound the same. And i give it back to the clerk who originally gave me the draft. That clerk will edit it and we will go through a round of edits and i will give it to my other clerks and we will go through a round of edits. They are pretty serious. This is before you circulated to the other people to everybody actually. Yes, before a circulate at all. Once you circulate it to the other judges, do they send you memos back . To they call you on the phone . Doy come by the office they come to the office . Sometimes they love every word. But when they dont, we are memo writers. Sometimes we talk, sometimes we get on the phone, sometimes we go down to somebodys office. For the most part, the rule is that if i have something to say to another justice, it should be said in a way that every other justice on the court can also sit so there is a transparency in writing memos rather than having a private conversation. Some private conversations or had. There is no strict rule against it for the most part, we write them to each other saying i dont like this part of the opinion, can you change that . Could you knockout this or add that in a lot of that goes on. If you write a dissent, do you wait for the majority opinion before you write the dissented . I almost always wait. You announce your decisions at the beginning of the session. Sometimes you read from the bench. How do you decide which of your opinions or dissents you will read from the bench in particular . I have only done it three times in nine years i think thats pretty typical. Most judges go through one 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. I have done a three times, one was my first year which is in a campaignfinance case. It was a statute in arizona that the court struck down, 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 with weather schemes by which employees contributed to labor unions even if they were not members of those unions were a violation of those employeesfreespeech rights. I thought they were not and it was a case in which the court overruled a very wellestablished precedent and i thought unjustifiably so. So i read from the bench on that. And last year, you read from the bench on a gerrymandering case where the court decided, i thought quite wrongly, that courts could not get involved in reviewing even the most extreme gerrymanders, places where you republican and the republicans would end up with two of 11 seats or ditto for democrats. And the court said it did not have the tools to invalidate those schemes even though, even by the courts own admission, it offered private people the right to vote and i thought it was a bad decision and i read from the bench on that one. So the criteria is when you want to call attention to something or when you think the majority is particularly there are lots of dissents where you thought the opinion is wrong. But there are two ways of seeing something and sometimes, its more important to decide something then to decide it right. You think you should dissent in ther to give the parties impression that it wasnt a slamdunk decision. After the case is over, you dont think about it anymore. Thats what the court decided, you go about your business. I think there are some dissents, its not even one per year. Maybe three in nine years where you think there is something that has gone badly wrong and where you think that its a decision of a real moment to the american people. Partly, you are saying to the American Public that i think something bad has gone badly wrong here. Sometimes the American Public can do something about it and you think about the withinring case months there were state courts that decided to invalidate extreme gerrymanders. There are people all over the country who were trying to put into place election systems not subject to extreme gerrymanders. Sometimes there are people who can ask the change matters on the ground and sometimes your maybe just writing to history. First cases i talked about the beginning of this where holmes and brandeis set the precedent of gerrymander is in this country so 100 years later, we believe what they say about Free Expression in america. Dissents. S started as not until decades later, they became the sort of seminal tracs. Is it more fun to write to sense . Yes and no. Its not good to lose. Its especially not good to lose if you think its a matter of significance. Writing, its more fun to write dissents. Dissents are more fun to read. Peoplesout that writing gets more vivid, more colorful, there is more personality in separate opinions then there can be when you are writing for an institution. The Supreme Court says to the Supreme Court says this but let me tell you why its completely wrong. I wrote a forward for a book george mason with the scalia law school, i wrote it forward for a book coming out with Justice Scalias and it. Whats so interesting and it, i looked at the table of contents and it basically about 90 of them are separate writings, either to censor separate concurrences. I think its because you can be freer. You can say this is how i think the law should work without worrying if youre 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 precedent of every word. Exactly. You are a fabulous writer. I would say you are good enough to be a journalist even. [laughter] but i will read from that redistricting dissents of people have a sense of it. This is the first three paragraphs, two paragraphs. Ever, thisirst time Court Refuses to remedy a constitutional violation because they think the task the on judicial capabilities and not just any constitutional violation, but parsing jerry madisons case deprives citizens of their most constitutional rights, the rights to purpose to participate equally applicable tos, joint to join with others to join and to choose their political representatives. This debased and the monitor our democracy, turning upside down the core american idea that all governmental power derives from the people. These gerrymander is an able politicians to entrench themselves in office against voter preferences. They promoted partisanship above respect for popular will. They encouraged polarization. F if left unchecked, gerrymander is like the one here may irreparably damage our system of government. Thats pretty good. [applause] i explained this to you, you can do it better in print. At least i can. Then you get real cheeky a few paragraphs on. A little snark . I like cheeky better. One of the issues was the court says you know, we can allow a certain part of partisanship. When is some partisanship too much . You write the majority is how much is too much critique fares no better than its neutrality argument. How about the following for a first cut answer . This much is too much. [laughter] i thought it was. And it was only the first cut answer. There were many other answers. But you look at that and you say this much is too much. Wherever we draw this line, this is on one side of it. Clerks to be a kind of to hold you in check . A little bit. Some of my best lines end up on the cutting room floor where they say its too much snark. Yours and mine. I want to talk about diversity. There is a tremendous diversity on the Supreme Court. There are four of you from harvard law school, for a view from Yale Law School and one from columbia. This question somewhat revised comes from shane crowe, a student here. As someone who went to princeton, oxford, and harvard, you know the benefit of an elite education. We have recently seen the lengths to which parents will go to get their children and elite education. What ideas do you have to open up the judiciary to those without that ely pedigree . That elite pedigree . I think its unfortunate the court is right now represented schools. Couple of law id. Quite know why it is. I dont know quite why it is. Some part of it is a fluke. These seats come open one at a time and you can only, there are only so many dimensions of diversity you can think about. Along with thinking about Everything Else in nominating. Im not sure any of us got appointed because we went to the schools. Sure, these schools to give opportunities to their students. You could argue this is a perfect meritocracy and its working. Thats not necessarily true. There are great law students all over the place. And great lawyers that come from all over the place. Bitfluky if you look at the american judiciary as a whole. Even at the Circuit Court level, you wouldnt find anything like this. Its a bit unfortunate or more than a bit. I go to lots of law schools and it doesnt surprise me that you just read that question because i go to law schools in one of the first questions will be, what is this . I am not a student at harvard or yale. Does that mean and and a good, world the answer would be no. Yeah asks this student question and i revised it slightly what advice would you give to a young woman in a male dominated field like the law, and in particular, one who was to become a judge . Go for it. If this is a law student. No, actually its not but an undergraduate. Thats a great ambition. And dont get outworked by a lot of men. To teach law school, is to find that some of the women did not volunteer as much of the man. The men. It could be that men talk when they dont really know that much. But i used to say to the women, just get in there. Is sort ofrning law learning the language, learning how to talk law. And the assertive and be bold and you are as good as anybody and go be a judge. Do you think law is now maledominated or have you broken the back of that . We are in a time better place than we used to be. You can see this on the court. There are four women justices and two are of one generation and two are of another generation. Justice oconnor and Justice Ginsburg were the real pioneers. When they got out of law school, nobody would hire them. A law firm would not touch them. They could not get clerkship jobs. They sort of had to construct careers out of nothing because nobody wanted women at the time. 25 years later, around the time were Justice Sotomayor and i get out of law school, at that point, 40 of the Law School Class was women. Now its over 50 usually. Jobsould get all the same weather was to be a clerk or go to a firm. But there are still i think the main obstacle for women in is women ares still,the ople who look after children, not always but often and constructing a do thewhere you can highpowered legal things and have the time he wants to have family is, i think him a great challenge. Even now, law firms dont have , if youomen partners look at the ceo ranks of businesses, you will find lots of men who were lost will train but not that many women who were. Thats got to change. We are almost out of time. I will ask you to final questions. Make them good. They are easy. The worst part of the job and the best part of the job . The best part of the job, i will switch the answer. Its an amazing job, i love thinking about law. Be in a position where you can think about all the most interesting legal questions of be able tod also really advance the rules of law. President holden talked about the importance of the rule of law and to do some justice is an amazing privilege and honor. If you dont appreciate that thats 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 your way. The worst part of the job is when you lose some of the cases you think are important and where you think the court has made a difference but made a not a good difference. Sometimes i come back from conference and i want to ram my fist through a wall. I think we all feel that at times. , you havele one of us to understand you will not win them all. Nine people with different views of the law and sometimes my view will prevail and sometimes they that probablyink the worst part of the job. Your sidedespair that 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 the court is a great institution. Have an unbelievable amount of respect for my colleagues. 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 handling really hard legal questions. Aboutalso dont despair its not just like im going maybe i the time will and maybe i wont. Nobody knows what the next case brings let alone what the next year brings, let a note let alone with the next decade brings. If you look at the court as an institution over time, the court has done very well by the american people. In thea lot of Faith Institution and in the people who make it up and i am convinced it will continue to do so. Lets thank Justice Kagan for being with us. [applause] thank you. Stay seated for a while. [captions Copyright National cable satellite corp. 2019] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] [applause] tuesday on cspan, the house returns at 10 00 a. M. Eastern for general speeches with legislative business at noon. On the agenda, a shortterm spending bill that would fund the federal government through most of december. On cspan2, the senate is back at 10 a clock eastern to consider judicial nominations for the 11th Circuit Court of appeals. And on cspan3, the House Intelligence Committee continues its impeachment inquiry with two public hearings. The first includes testimony from jennifer williams, an aide to Vice President pence and Lieutenant Colonel Alexander Vinman who serves on the National Security council and i gets underway at 9 00 a. M. Eastern. Later in the day at 2 30 p. M. , the Committee Hears additional testimony from tim morrison who is also part of the National Security council and kurt volker, the former u. S. Envoy to ukraine. For the next two hours, we are getting your reaction to the impeachment inquiry as the House Intelligence Committee
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