House republicans leadership needs to stand up to the extreme it republicans who are harming the American People and its economy. Supreme Court Justice elena kagan said she believes the high court should act with the code of conduct used by lower courts. It follows news reports on the travels of Justice Clarence thomas and the sales of justice sotomayor. University students attended this event. [applause] thank you for the introduction and the warm welcome i have received already from your law school. I really enjoyed the day so far and im sure i will enjoy this conversation too. Im so grateful you are here. I want to start by asking you, your path to the Supreme Court ran through academia. You were an academic first. You were the first nominee to the Court Without prior judicial experience since adjust is 50 years earlier. How does your academic background shape your perspective on the court and do you think it gives you a different perspective than your colleagues . The court eventually had many people who have served a great deal of their career in academia. There were all judges and i was not, but Justice Barrett is essentially an academic and we are the only two on the court now i think, i hope im not forgetting anybody. But justice ginsburg, her formative years were spent in academia. Club be a law school. Justice breyer at harvard law school, Justice Scalia at the university of virginia law school. The court has had plenty of academics and i am not sure that in terms of you can tell from those people, they are very different kinds of judges, very different in the decisions they made. So there are all kinds of academics in the world. Im not sure academic background leads to a particular kind of judge. I will tell you the way i think it has affected me most. It is not the scholarship idea or the academic environment generally. It is the experience of teaching and the way that has affected me is when i write my opinions, i try hard to figure out how im going to explain things to people. Because the law is complicated and often arcane, especially when i started the court and i was a junior just as i got these super technical opinions to write, the thing that junior justices tend to get. And but i wanted ordinary people to understand them. I wanted not just legal specialists to understand. I wanted nonlawyers to understand and you dont want to dumb them down so that everybody can understand them at the expense of the legal precision and sophistication. But i wanted to figure out a way to present ideas in a way that they were comprehensible to people. In the end, this is a democracy and people in a democracy should be able to understand how art institutions our institutions of government work, including the courts. Best way i knew to do that was when i sat down to write an opinion, i would think about sitting down to prepare a class. When youre preparing a class, you are imagining going into a room of smart people, engaged people, people who at that moment before they have had the class dont know all that much about what you are going to teach them. Maybe a little, but it is important to figure out how to present ideas, including complicated ideas, to people. And in a way that they will understand at the time and that will also stick when they look back later, whether studying for the exam or years later. They will remember something of what you told them. I think you develop certain habits. Good teachers do. I like to think i was a good teacher, of how to explain things to people in a way that will be understandable. I try to think of that when i write opinions. Im very much approaching my opinion writing task as a teacher, which is of course what i did in moscow. But you are also a dean. I wonder if you learned anything about that. With her i learned anything but judging from being a dean, i think you think about an institution as a dean and if i was not already, being a dean made me into an institutionalist. I care about the future of the is a duchenne that im in, i try hard to do what i can among the nine of us to make the institution work better. I tried to Pay Attention to relationships in a way that deans have to Pay Attention to relationships. Maybe the small p politics of institutions, which most have, i hope i am attentive to the cause of that experience. It only takes you so far. But i think i like to think of myself as an institutionalist that wants to make the court is a multimember body and once whered we can reach good decisions. Where we can reach good decisions. We can make principles that are consistent with our obligation to interpret and stay on the law as we see it. I think those instances, instincts, which i hope i have, were important as a dean. Host well, yeah. In addition to being an academic, you were also general of the United States. Sometimes we refer to that as the temp justice. Can you share what that experience taught you and how that may dive you on the court . Guest yeah it is the coolest job on the in the world. If you can plan out your career i would have loved to spend a few more years there but when thes calls calls you as associate to the cream court as think it is the wrong answer to say i would like to stay here for a year. [laughter] guest that is why when you said you were the only one that wasnt a judge, which is true, it used to be a case, by the way that the court was full of people, lawyers who had it and just judges. For example, if you look back to the ground court they did not have a single justice on it who had been a judge previously. Chief justice greg list had never been a judge previously as he said. And weve gotten away from that. I think weve gotten away from it mostly because of the nomination and confirmation process. People and president s very much want to know what their nominees are going to do. And of course it is becoming a little bit more or a lot more, something president s want to make sure that they are nominees are not going to surprise them. The best way for a nominee to not surprise them is to have an extension extensive judicial records of the president can look at that and say, yeah, that is what they are going to be like as a judge. But from the standpoint of the court, im not sure that the court did very well for many years without everybody being the judge before. It is not rocket science, you know if you are a good lawyer and you are engaged in the law and you have judicial temperament and you have a proper understanding of what the judicial role is, then i think youre going to be a good judge. But to the extent that there were experiences about serving on the court that i did not have, which there were, my first year was very much a learning experience. The learning curve was high. But i would say the experience being solicitor general was superb preparation for being on the court itself. What the solicitor general does, when i say it is the coolest job in the world, it really is. It is the person in the Justice Department who basically has the responsibility for all the work of the United States. The solicitor general decides what to appeal, what trial judgments to appeal if you assume that the Supreme Court has 60 cases per year probably the solicitor general and one capacity or another in as a party or as an amicus will take part in 45 of the 50 of those. The great majority. So, what the solicitor general does is make all of these decisions. That is the fun part of the job. Deciding what cases to appeal and which arguments you will bring forward. In particular, in the Supreme Court your office is arguing a substantial majority of the cases. You are arguing some of those. Every month, the solicitor general goes up to the Supreme Court and gets to the podium and argues whatever the most important case of the month is. And they flow through the solicitor general so that she is responsible for thinking about how to argue all of the cases before the court. What arguments are going to be presented. And my job is basically trying to figure out how to convince these people of the United States in this position on various matters. So the job is first to often decide what the u. S. Position was and think how you are going to persuade the court to adopt it. And when i got to the job i said the job has not really changed area for i was trying to sway nine people and now im trying to persuade just eight people. Host [laughter] guest it was the same basic job. By the time i finished my job they are and do a lot about the court personalities. I saw it in action and i focused my thinking on the court and what made it tick and what is likely to persuade it and what is likely not to. So when i got to the court, again, there were lots of things i had to learn, but it felt like very good preparation. Host you mentioned the confirmation process and in your confirmation hearing in 2010 famously said we are all originalists. Can you explain what you meant by that . Is it still true . Guest yeah so i actually didnt, that is a only part of the sentence. [laughter] guest since Everybody Knows that part it is nice you gave me the opportunity to tell you the other part and what it meant. The sentence goes so in that sense, where all we are all originalists now. You can tell in that since there was a more complicated statement. It came after a long discussion about why i was not an originalist in the conventional understanding of that term. But instead, why i thought the constitutional meaning involved and developed over time. And why that was consonant with what framers wanted. And consistent with the document that they gave us. So, in that sense, it is like no im not an originalist as some people would define it, but in fact my view that constitutional immune is him evolved is consistent with the actual original understanding of what the document was meant to do and how it was meant to work. So, without author table, that stupid soundbite that has been hanging over my head for i dont know how long host [laughter] guest i tell you why i think the constitution evolved and how it has and why it is. Based on what happens. Take a document there are some parts of the constitution that are very specific. It says nobody under 35 can be president. Well everybody agrees on Something Like that, but well if you are not 35, you cannot be president. Nobody goes further than that and everybody is willing to itself that. Nobody says 35, is Something Different than than what it is now, maybe it should be 50. Ok, but a lot of the constitution is not like that. A lot of the constitution is these broad general phrases. Example, if you look at the 14th amendment, that is where we have a lot of the constitutional law that people care about comes from. The 14th amendment says the people shall be granted to due process of law. They should be granted people People Protection of the law. The question becomes how do we interpret those phrases and how we decide what those phrases mean . Originalist position is very is different forms of originalism and everything is very complicated. I did not want to simple if i too much, but in essence, the originalist position is we look at what those phrases meant at the time and there was and that late 1860s we look at what people thought it meant to have equal protection of the law and have do assess of the law due process of the law. And that was the applications that we should continue and nothing else. All right. So the first thing about that is that it is really hard to figure that out. I mean, lawyers, judges, are not historian. History is hard and that kind of constitutional history trying to figure out what words meant to people, what words applied to them and what the history was, lets call it, that is a pretty impossible task. You see it honestly and the courts opinion in the original one persons history has a historical argument saying a and another person has a historical argument saying not a and both of them seem to pick and choose from the historical record. Sort of cherry pick or they call it picking out your friends in a crowd when they talked about legislative history. So, the history is hard. It is rare in these cases that we can know with any certainty what these, how these particular words were understood. How what they required and when they did not require. At the exact time in question. Maybe even more maybe the even more important points and the thing i was trying to say is that an ancient hearing, is said that i dont think the framers thought and i do not think that we should think that that is the question. What is equal protection of the law meaning in 1868 . Nobody would abuse phrases like that if they had just meant to codify a particular set of practices they would have codified a particular set of practices. These people, they were speaking for the ages and they knew it. And they were speaking for all of these people, people in the original founding period and then after the civil war, if there was anybody who understood how the world changes it was those people. How societies change, how government changes, how people change, they had brought on a revolution. They have lived in the civil war, they had no doubt that society would change. And understandings changed. And they spoke in those phrases because they wanted the constitution to be fit to govern the people as that people lived over time. Now, that doesnt mean that there are no bearings, quite the opposite, the original understanding is important so too is the broader structure of our history. So to is the particular precedents that the court has used. So you always have to think about anchoring and not going off on just saying, look, if we dont we can just make it up. We cannot just make it up. Lawyers have, judges have to be disciplined. Judges have to be constrained. The project is not to figure out what they thought, this again is an example, it is an important one. People protection of the laws meant in 1868. That was not the founders own project and they were right about that. Think about the kinds of rules that we would have to live under if that were the project. Ive got to tell you, dean, the two of us would not be sitting up here having this conversation in 1868. So, just to take a couple concrete examples, there was nobody that thought in 1868 that People Protection of the law prohibited segregated schools. There have been some arguments in this, but they are not convincing. As brown itself made very clear you know, there is not an originalist argument for the prohibition of segregation and education. Four not a good one at least. And similarly, that protection clause, that so did not apply to women. Women wanted themselves to be protected in the equal protection clause and there was a specific decision made not to have anything about women and indeed sort of suggest that they really did not have anything. People did want it to be entirely race focused. So if you just look at 1868, women have no go right from the protection clause. So i think, i could go on and on about Different Things that are accepted by pretty much everybody now that we would have to itch if we really were true to this. Like no, we just do it the way they did it in the founding period. I do not think that we could live with that, i do not think the framers wanted us to live with that. Again, it doesnt mean you can do anything you want constraint and strength and minimalism might be really important judicial values. And the reason originalism caught on was really because of that. People thought that the georges the judges were kinda making up and they were imposing their own personal preferences. That is a totally legitimate concern and you have to figure out ways to prevent that from happening. And i think, as i say, i am more will to various approach, an approach which thinks about the law as it develops over time. Thanks about sticking close to resident, prescident that is, that is the way to be constrained. Host youve been a stand fast defender of this. Most notably in your majority opinion in campbell versus marvel. In the recent decision with dobbs and students of fair emission, the majority of the court voted to overrule precedent. Is precedent becoming an ideological dividing line in the court . Guest i surely hope not. You know, you are right that there have been times recently where there have been ideological divides with one side overturning precedent. You know, i dont think i am hopeful that it will not have it year after year, case after case , at least it shouldnt because the idea of precedent is of incredible importance to the development of law. Maybe i will say a few words about why that is no. Why that is so. It is a counterintuitive idea that somebody across the court did something in the past and that it is should to do the same thing even if that thing was wrong in its original formulation. Because it was right in its original formulation, of course presedent doesnt work. But sources come in saying even if you think it may have been wrong or think it was wrong, there is still value in sticking to the course that was laid out. People say why would you do that if you think it is wrong why not just change it . There are reasons to that and one of them is just humility area it basically says i am one judge in one time and if there have been many other judges over a course of many years then i i of people act as i wrong. Starting with humility it is a good value in the law. The judges do not think they know everything and can do everything. Im sorry to say it is basically a doctrine of humility. It is also a doctrine of civility. And of reliance. It keeps laws stable and it means that the people who rely on a tickler legal rule or principle a particular legal rule or principle do not have the rug out from them. It is not like you are right one day and then you own a piece of property the next day. So stability and intention to reliance interest are of crucial importance in the law. Finally, i would say resident is important. It prevents the court from looking like a political actor leg and ideologically driven actor. The reason is because sometimes it is because new judges have come on the scene and they say we never like this role. We were not part of this and we never liked it so we will overturn it. But when that happens, the court looks as though it is just a matter of who is on the court. What judges happen to be there on any given day. That is not look very small like two people. It is a crucial thing about our eagle institution. That thick legal institution. And that the public has confidence in them. People have no right to expect that