- Good afternoon and welcome everyone to the Shannon Theater
at the University of Wisconsin in Madison.
I'm Chancellor Rebecca Blank,
and I'm really delighted that you're all here
at what is going to be just a great event.
I want to thank the Law School,
and I want to thank Dean Margaret Raymond
for organizing the event, and I want to thank
the Honorable Associate Justice Elena Kagan
for her willingness to be here.
I had the privilege of getting to know Justice Kagan
when we both worked in the Clinton White House,
and I am very happy to welcome her
here to the University of Wisconsin.
You're in for a treat.
[applause]
I suspect that many of you in the room today
were here almost exactly a year ago
to see Justice Sonia Sotomayor,
and you may be thinking to yourself,
now, does the U.S. Supreme Court
send a Justice to UW every year?
[audience laughing]
Well, not quite, but ever since
Justice Thurgood Marshall spoke here at UW
nearly a half century ago, we've hosted
a number of members of the Court.
Chief Justice William Rehnquist,
who's a Wisconsin native, spoke here twice.
Justice John Paul Stevens gave our very first
Fairchild Lecture, and Justice Antonin Scalia
gave a rousing speech in 2001 that,
this might not surprise you, actually drew a few protesters.
[audience laughing]
The Justices who visited UW have been consistently
impressed with the Law School's strong commitment
to our law in action approach to teaching,
an approach that's grounded in an understanding
that a lawyer's role is not just to know and apply the law,
but to solve complex problems in a way
that improves lives and strengthens communities.
That tradition is an important reason
why our Law School consistently attracts
nationally renowned scholars to its faculty.
Dean Margaret Raymond is one such scholar.
Dean Raymond has a deep understanding
of the unique role of a public institution
in educating lawyers to serve a very diverse mix of clients.
That understanding drives her commitment
to help build programs that introduce students
from disadvantaged backgrounds to careers in the law,
programs like the James C. Jones, Jr. Pre-Law Scholars
Program, launched two years ago, to give college freshman
and sophomores from traditionally underserved groups
a chance to see what the law is all about.
I want to thank Dean Raymond for her leadership,
and I want to thank our distinguished guest
for what is surely going to be a fascinating conversation.
And thank you all for coming.
Please join me in welcoming Dean Margaret Raymond.
[applause]
- Thank you Chancellor.
It's my distinct honor to welcome you all today
to this session, a conversation I will be
privileged to have with our esteemed guest,
Associate Justice Elena Kagan of
the United States Supreme Court.
Justice Kagan is a graduate of Princeton University.
She secured an M. Phil. from Oxford,
and her J.D. degree from Harvard Law School.
She is also a proud graduate of
New York City's Hunter College High School.
[whooping from audience member]
After law school, she served as a law clerk,
first for Judge Abner Mikva of the U.S. Court of Appeals
for the D.C. circuit, and then for Justice Thurgood Marshall
at the United States Supreme Court.
She practiced briefly in a firm,
then became a law professor, first at the University
of Chicago Law School and later at Harvard Law School.
She served for four years in the Clinton administration
as Associate Counsel to the President and as Deputy
Assistant to the President for domestic policy,
and from 2003 to 2009 she served as
the Dean of Harvard Law School.
In 2009 she was appointed and confirmed
as Solicitor General of the United States,
and in 2010 was nominated by President Obama
to the U.S. Supreme Court filling the vacancy
created by the retirement of Justice John Paul Stevens.
She took her seat on August 7, 2010.
She has my tremendous. admiration
for many reason, but two stand out.
The first is the rich diversity of the work she has done
which makes her sort of a legal renaissance woman,
and the second is her steadfast
determination, commitment, and focus.
She is truly a model we can all learn from.
Justice Kagan has very generously
and very tirelessly given of herself
throughout a very full day of engaging
with our Law School community,
and we appreciate that she's taken this time
to be with U.S. and to visit our campus.
And she told U.S. this is her first visit to Madison,
so please join me in offering her a warm Badger welcome.
[applause]
- Thank you.
[applause]
- Thank you.
- It's really great to be here, thank you very much.
- Let's talk a little bit about law school.
You went to law school, you taught at a couple
of law schools, you were the dean of one.
Are there things you're glad you
don't have to do anymore in law schools?
- Well, I love law schools, and so I like visiting
law schools, visits such as this one.
I actually, as you said, I was Dean of Harvard,
and I go back to Harvard every year
for a week and teach a course there.
I just got back from that, so I've been thinking about
teaching and how much I love it and how I sometimes miss it.
It's great, you know, just to be back
in an academic community where, you know,
people tell you what they think.
There aren't all that many people who are
honest with Supreme Court justices.
They don't say, you know,
that opinion you wrote, it really stunk.
So I go, especially to faculties that I know,
like Harvard and to other places as well,
where I can hear a little bit about
what people think about the work
we're doing, the work I'm going.
Where I can hear what students think.
I mean, I was just in this week-long class,
and what I teach is I pick eight or ten
of the cases that we've done the prior year.
And you would think that nobody could tell me
all that much about those cases, right,
that I've spent a lot of time thinking about them.
In some cases, writing them, but every year,
I'm struck anew by the fact that you put students,
law students, around a table, and they have
all kinds of interesting things to say,
and at least once a day I think,
"Good gosh,
why didn't I or any of my colleagues think about this case
in just the way that person thought about this case?"
So, I feel, I love going back to law schools
because I feel as though I learn things
about the Court, about the job we're doing.
And I just like being in the academic environment.
I think students are really energizing.
I think faculty members are smart and perceptive
about some of the things that we're doing in Washington.
So I do like these sorts of trips.
Now, you know, that said,
you're a dean. I was a dean.
There were moments where I think,
"I'm really glad I'm not there," you know?
[laughter]
So, and I'm really happy with my current job, obviously.
[laughter]
So I don't spend all my time thinking about
how I'd trade back,
but it's nice
to get to some law schools a few times a year, three, four, five,
whatever it is I do, and to talk with people.
- Let's talk a little bit
about how you came to be where you are.
Your father was a lawyer.
Did he bring it home?
Did he talk about work?
Did you think, I want to do what he does,
or was that not a big influence
on how you came to be where you are?
- You know, it's a funny thing.
I've talked with my colleague, Justice Sonia Sotomayor,
about this, and I don't know if she told this story
when she was here last year, but when people ask her,
why did you become a lawyer, she talks about
how in her childhood she watched Perry Mason episodes.
And for those of you who are not of a certain age...
[laughter]
Perry Mason was this TV show
where there was a trial lawyer who was the main character,
and every week was another case, and every week
he would go to trial and sort of pull some
magic rabbit out of a hat so that a case that he was
clearly going to lose, he instead was going to win.
You know, he discovered some new piece of evidence,
or he did some great cross examination,
and it was all very exciting and glamorous,
and you could see how somebody watching it
could think, I want to be a lawyer, I want to do that.
And I've said to Justice Sotomayor,
I've said, you know, my father was a lawyer,
and I knew that law was not Perry Mason .
[laughter]
You know, quite the opposite.
My father actually was the kind
of lawyer who never went to the Court.
He actually thought it was kind of a failure
to go to Court because it meant that
you hadn't solved the problem by other, better means.
And now I really
understand what gave him
such incredible satisfaction in the work that he did,
and I also understand, better than I did then,
the extraordinary value of that work
because he was a real problem solver.
I mean, he wasn't somebody who went to court,
much less trial courts where he was pulling rabbits
out of hats, but he worked to solve people's problems,
and there is very little more valuable
one can do in the legal profession, or in life.
But then, I have to say, I was not mature enough,
really, to get that, and it seemed
a little bit staid for my taste, actually.
And I went to law school for all the reasons
people tell you not to go to law school.
I went because I was trying to keep my options open,
and I couldn't quite think of anything better to do.
And I thought of law school as a little bit of a holding
action, but then it turned out I loved law school.
I got there and I thought that the questions were
fascinating and challenging, and I thought that
the combination of that with the ability to,
you could see how lawyers
could do things in the world,
could improve communities, could better people's lives.
So you had both the practical, you can make
a difference with this, and also the more intellectual,
you know, this is just really interesting.
And the marriage of those two, it was pretty lucky,
given how little I had thought about why
I was in law school, but I knew pretty much
straightaway that I had landed in a good place.
- I know you've said that your mother taught you to write,
and that every fifth grade paper was of supreme importance.
Talk about her influence on you a little bit,
and how that sort of, what you took away from her
that stays important to you now.
- Well, I'm going to answer that question,
but I'm going to preface it by letting the audience
in on this little secret, maybe some people know.
You said, she's a proud graduate
of Hunter College High School.
We've know each other for how many years, Dean Raymond?
- [making mumbling sounds and laughing] We've known
each other fro 45 or so years.
- Could she not have done that?
[laughter]
- Now we're not that old, so that suggests
that we met each other really young, and indeed we did.
We met each other in junior high school,
and we were 12, 13,
something like that,
and we were great friends in junior high school
and high school, and we went to school together,
we lived very near each other,
I was in your apartment a lot,
you were in my apartment a lot.
So when you ask me a question about my mother like this,
part of me says, well you know my mother.
[laughter]
- A formidable woman, but I thought maybe you'd talk
a little bit about her with everybody else who's here.
[laughter]
- Okay, well, formidable is a good word for my mother.
The gender roles in my household were a little bit mixed up.
Because my father was a very gentle man,
but my mother was formidable.
She was tough!
And she was very demanding.
But she was not the easiest mother because of that.
I have known people with easier mothers.
[laughter]
But, boy, my mother's voice
is in my head all the time
because she demanded things,
but she taught you to demand things of yourself.
My mother had this really strong belief
that you could do things well or badly,
and you could show commitment and discipline,
or you could not, and that the way to live your life,
your personal relationships, your jobs,
your schoolwork, whatever it was,
was with a sense of responsibility and discipline
and commitment and hard work and effort.
And, you know, it's not that I always lived up
to those things by any means, but I'm awfully glad
that there's this voice in my head,
which is my mother's voice, saying those things.
So, pretty important.
- What about other mentors?
Teachers, employers, people who made
a big impact on your life.
- I feel incredibly lucky.
I'm sure this is true of--
I kind of think basically that nobody succeeds
in life without other people.
Like, the idea of doing it on your own
is pretty ridiculous, and I can look
at every stage of my life, and say,
here are the people who really helped me,
who helped me understand what it was to do this thing well.
And I can do that in law school,
and I can do it when I went to a law firm
and there were particular partners who I dealt with
who really modeled what lawyering was for me.
And then when I went to the University of Chicago,
and I didn't know anything about teaching, or about how
to construct a scholarly career, there were particular
people who really took me under their wing, and said,
here's how you can be a scholar, here's the way to teach,
and it's not like anybody held the key as to any...
But listening to these people made a huge difference
to me in figuring out institutions
and what it took
to be successful in institutions,
I mean, all the way to what I do now.
But I'll just sort of take a pit stop in the
Solicitor General's Office where I walked into that role.
it's a role that preeminently means getting up at a podium
and making arguments to an appellate Court.
I have never done that in my life before,
and there were people there who had been
in the Solicitor General's Office for decades
who basically took me in hand
and answered
every question I had and then answered
some questions that I didn't know I had
and sort of gave me a sense of how to do this thing.
And I feel as though that's happened,
really, at every stage.
And for me the lesson for law students,
and I know a lot of this audience is law students,
is the best thing you could do is put yourself
in a position where people could give you great advice
because, just inevitably, as you go through a career,
there are going to be people around you
who know much, much more than you do.
And a lot of them
will want you to succeed
and will want to be able to mentor you and advise you.
And sometimes I think it's just a little bit hard
to ask for that because it looks as though,
"Well,if I have to ask, it means I don't know,
and if I don't know, they'll take that the wrong way."
They'll say, "Oh, why doesn't she know that?"
But I think most people are not like that.
They're actually really glad to be a mentor,
and an advisor, and a helper,
so making yourself
a little bit vulnerable and asking the questions
is kind of the best thing that you can do.
- Well that worked for every job but this one, right?
You walked into the Supreme Court,
and you had not been a judge before.
And that's pretty unusual in this day and age.
- Yeah, I'm the only one.
The only one on the current Court, yeah.
- Being a judge for the first time as a Supreme
Court Justice, is there justice school?
How do you learn to be a judge?
- There is no justice school.
This is actually a pretty interesting thing to me because
immediately I was asked to take part in these seminars.
For every other kind of federal judge, trial judges
and circuit court judges, they bring you
to Washington and they do do judges school,
and it's like, it varies depending on
whether you're on the district Court level
and the appellate Court level, but it's like
here's how to do the various things
that you're going to have to do.
And there was no justice school.
It's very much they throw you into the deep end of the pond,
and say, swim why don't you, you know?
And, it was sort of funny, the first year
I kept on being invited to speak
at these new judges seminars and conferences,
and I was like, "I don't know anything." [laughs]
"Why didn't they do this for me?" was my basic question.
It's not that people are unhelpful.
I mean I think people actually want to be helpful,
your colleagues, but I think everybody is very anxious
to show you that from the moment you enter the institution
you are a full citizen, so I think that that's,
the Court is one place where people actually,
you know,
they don't often volunteer advice
because to volunteer advice is to suggest
that they know more than you do.
And actually I think that people really want to say
to a junior justice, you're one of us, you have the same
vote that everybody else has, you're the same justice.
So, of course I did ask a lot of people
about a lot of things, but in this job
a big part of it was trying to figure it out for myself.
I made a decision at the beginning of my first year.
I had three of my four clerks had clerked
in the prior year for three other justices,
and whenever I came to something where I thought,
I don't know how to do this, I'm not sure what makes sense,
I would say to these clerks, well, what did your bosses do,
and then I would get three different answers.
Which, number one, suggested to me that there was
no one right way to do it which was helpful in itself.
And also, you know, gave me some sense
of the universe of possibilities.
So the first year I spent a lot of time
the first year just sort of trying to figure out
some of the mechanics of the job because you have to
figure out how you learn best, how you digest a case best,
what are the inputs that you need to make a good decision
because everybody learns things in different ways.
And so you have to sort of figure out
what are the processes that you need to put into place
in order to make sure that you're making the right
decisions, casting the right vote, and then, of course,
what are the processes that you need
in order to write the best opinions that you can write,
as well, and to do all the other
various aspects of the Court's work.
So a lot of it was trial and error my first year,
and some things succeeded and some things failed
and then I would just do it differently
the next time around, but I would say by the end
of the first year I had the processes pretty down pat.
And then as each year goes by, you just learn
more and more about more and more issues.
I mean, you said in your introduction, that I had
written on a great variety of things,
in some respects you just have to, you know,
your assignment is one day on some criminal case
and one day on a Constitutional Law case
and its one day on a tax case and its one day
on an electricity regulation case.
And one of the fun parts of the job
is just to learn about a lot of areas
of law that you didn't know anything about
to start with so that, even once you basically
get the hang of being a justice down,
the learning curve is still high because there's just
so much that you didn't know about so many subjects.
- And that's gonna keep going for a while?
- You know, that's gonna keep going
for a while, and I hope forever.
My predecessor, John Stevens,
retired when he was 90 years old
after having been on the Court,
I forget whether 35, 40 years,
something, you know, a long long time,
and one of the things he said was that he loved the job
because he was constantly learning something new.
And to be able to say that at the age of 90
after having served on the Court for almost four decades
and to say, you know this week I learned
this amazing thing, you want to be that person, right?
And partly it's personality and the fact
that he had a personality that was just always searching
for new things, but partly it's the nature of the job.
You kind of can't help but learn new things
because new problems keep being thrown at you.
- So you were a law clerk at the Supreme Court
a while ago, and then you were an advocate
at the Supreme Court.
Did those things equip you in any unique way
to bring something to your job that maybe is special
or helps you do it better?
- Well, we were law clerks a year apart
for the same justice, Justice Marshall,
and one of the things that was really interesting to me
when I got to the Court was that there was,
and there was almost 25 years in between those two things,
the year I clerked and the year I arrived at the Court,
and here's the most surprising thing about the Court
is that very little changes.
[laughter]
In those 25 years, I mean, I had to have my memory
refreshed a little bit, but all the processes
were the same, all the procedural rules were the same,
the way the Court operated as an institution
was largely the same.
Now this is an amazing thing,
it's not just any 25 years, right?
This is a 25 years in which there was a communications
revolution, a technological...
[laughter]
Eh, not really at the Court.
[laughter]
So, I mean, to the degree, even the people
hadn't really changed all that much.
[laughter]
The Justices had, the Justices had, but on my first day
on the Court, this is a digression, I'll come back
to your question, I promise.
The Chief Justice took me around to all the various offices
and introduced me to people in the Clerks Office
in the Legal Office, in the Publications Unit,
in the Library, all these different offices.
And almost invariably there was someone in each
of those offices who said, oh, I remember you
from when you were a clerk [laughs].
[laughter]
And I'm thinking, oh gosh, I hope I was okay, you know?
[laughter]
One doesn't really like to be defined by one's
27 year old self, but the Court changes very slowly.
And so, I think actually being a clerk
was extremely helpful to being a justice,
just in terms of the way the Court operates,
the way the processes work, and then being S.G., all that
the Solicitor General does is think about the Court.
I mean, sometimes I think, basically my job
as Solicitor General was to persuade these nine people
of a particular view, and the only thing that changed
when I became a Justice was that now I only had to
persuade eight people, right?
[laughter]
But then, you know,
all the S.G. does is think about the Court
and think about individual Justices
and what their views are
and how their views might relate to a particular case.
So, it prepared me very well in that sense.
I almost think that there's no better job,
even more than an appellate judge in a circuit,
in some ways,
there's no one who thinks about the Court
more than the Justices, you know, then the S.G. does,
or as much as the Justices as the S.G. does.
The other thing, honestly, that being an S.G. has done,
is it makes you realize how hard the job
of the people at the podium is.
So, I mean, in general, arguing in front of courts
is difficult, but in front of the Supreme Court,
it's pretty much as nightmare because you have a lot
of very, very active people who ask a ton of questions.
I would say in a 30 minute argument,
maybe 50 or 60 questions get thrown at you.
It's very rapid fire.
You have to have really thought through stuff
before you get to the podium.
Often the Justices aren't really asking you questions,
they don't really care about the answers you give.
They're making points to their colleagues.
I say this not in a pejorative way.
I do it all the time, I think it's actually
an important part of the process
that we're talking with each other up there.
But it makes it extremely hard for the lawyers
who, you know, really do want to
occasionally interject some point.
[laughter]
And so, you know, honestly,
being S.G.
just made me realize, boy these people have a hard job.
And, you know, to the extent that I remember to do so,
I think it's a good thing to realize
you know, let's give
these people a little bit of a break...
- That being said, are there things you see
in the performance of lawyers who are appearing
before you that you either think, "Man, that was good,"
or, "Ooh, don't do that,"? - Sure.
- Is there sort of good and bad news for the folks
in the room about how to be a good appellate lawyer?
- Yeah, I'm not sure
I could put it on a postcard, but absolutely.
I'll say first we are so, so lucky.
We have an extremely high-caliber bar.
One of the things that's changed, actually,
since we clerked there, is that a lot of the arguments
are done by repeat players who have been there before
who really know the court, who know the process
of arguing before the court, who know
what it is we like, who know what they should be doing
and what they shouldn't be doing.
So, in general, we have really high-caliber folks.
One of the things that seeing really good lawyers
tell you is that there is no single right way to do this.
I was once coming back from a circuit conference,
I think it was the Sixth Circuit Conference,
and there were two lawyers on my flight,
and our flight was delayed, and we ended up
hanging around and talking with each other
for a long time about Supreme Court arguments.
And these were two of the best lawyers
that there were at the Supreme Court,
but very very different in style.
And one of them described it as,
one was a hot lawyer and one was a cold lawyer.
Like, one gets up to the podium, and the place
just like throbs with energy.
Everybody leans forward in their chairs.
He just, there's so much sort of tension
and energy in the air, and then he's tremendous
and knocking everything out of the
ballpark and arguing with you.
The other is calm, cool, and collected as can be.
And, just sort of cools down the temperature of the room
and is Mr. Reasonable Man, and surely you have to believe
everything he says because he says
it in such a calm kind of way.
[laughter]
Sort of slow, you know.
And they're nothing like each other,
but they are both
tremendous, tremendous advocates.
So a lot of it is personality.
A lot of it is just what feels comfortable.
But that said,
I guess a couple of the things is,
you gotta listen to the judges, you know.
Everybody goes up there
and they wish they could repeat their brief.
And it's hard not to, right?
I have these five great points
that I need to be able to make.
But the Justices, we're all very well prepared.
We've all read the briefs.
We know your five great points.
We're not really interested in your five great points.
[laughter]
And the ability to sort of understand that.
To say, you know, the judges are asking you
super hard questions, and they're almost always
asking you questions that are at your cases' weakest points.
And there's a tremendous temptation to just try
to answer that quickly and go back
to what you think the strongest points are.
But in fact what you have to do, they know your
strong points, they've read your briefs,
what you have to do is really have the fortitude
to engage the weak points and not to just sort of
try to slough that off and go back to a place
where you're most comfortable.
So I would say that.
I would say to treat the things as a conversation.
There is no orating at the court.
Nobody has any patience for it.
Nobody has much tolerance for it.
But if you can get up there and treat us as equals.
I mean, you have to be respectful to us, of course,
but treat us as equals and get into a serious conversation
with us about the law and the various fine points
of the case, I think people really appreciate that.
And, I don't know, would you add anything else?
What do you think?
[laughter]
- Until I start my career on the Supreme Court,
I'll probably reserve my opinion.
- Okay, well those are the things that come to mind.
- It's hard to know how it looks from where you sit,
but many of U.S. today find our communities
and our conversations increasingly polarized, angry,
and fraught with conflict.
Do you see a way forward to sort of mend
some of the rents in our divided society,
and do you think the Court plays a role
in facilitating some kind of comity in civil discourse?
- Well, I don't think, I mean, I guess there are not all
that many people, I think, who don't look at the place
we're in and see us as very divided
on quite a number of issues and see the discourse as being
pretty hot and, you know, often depressingly so.
I don't think that I have anything very useful
to say about that in our general political system.
I think I have thought about it with respect to the Court
because the Court is also an institution
that people sometimes see, certainly can see,
as divided in some sense, as mirroring some of the
divisions that we see in our broader political system
and in our broader society.
I think we're doing a good deal better
than some other institutions, but I think
that it takes hard work
and sort of an awareness of this issue,
and I think we should be aware of the issue.
I mean, look, we have a job to do,
and the job is not to model civil discourse
for other institutions or for society generally.
The job is to decide cases and that's your principle job,
and you have to decide cases as best you can
as opposed to sort of saying, "Let's be the model
for other governmental institutions.
But I think that there are times
when you can decide cases
responsibly,
consistent with your Constitutional responsibilities
in ways that also reflect some awareness
of the dangers of division
and the value
of consensus and collegiality and where you can--
you can't always--
but where you can, compromise.
And those are I think important things
for the Court to think about, how we can
achieve more consensus, how we can be more collegial,
how we can compromise out some issues
that at first, at first seem impervious to compromise,
how we can reach some common ground
even where you originally thought
that there was no common ground possible.
And in some ways, we've had to to do that
the last couple of years.
So the last couple of years,
after the very unfortunate passing of my colleague,
Justice Scalia,
and really the better part of two terms for the Court,
we've had an eight person Court.
And that meant that there were some fair number of times
when if you just sort of did things
without thinking about consensus and compromise,
you would find yourself stuck in a four-four tie.
And none of us wanted for that to happen very often
because it would look as though we were a riven institution.
And it would look as though
we were incapable of getting our work done.
And so I think we all made a very serious effort
to try to find common ground
even where we thought we couldn't.
And it sort of forced us to keep talking with each other.
Right?
When you have a nine person Court, you can just say,
well we have a majority and then there's a minority,
and that's the end of it.
But with eight people sometimes you can't say that.
Sometimes you're split, and the only way you can get
unsplit is to keep talking and keep talking and keep talking
some more, and to find some way of reshaping
or reframing a question or reframing the debate
so finally you can find common ground.
And we had to do that a bunch in the last two years,
and the consequence was that we talked to each other more,
and that not infrequently
we found ways
to reach agreement that we wouldn't have expected
when we started the conversation.
I think that that is the silver lining
of the two years with an eight person Court.
And I'm actually hopeful
that the effects of it
will continue now that we have a nine person court
in the sense that, you know, all of us will remember
not to stop the conversation too soon.
And all of us will remember the value
of trying to find a place where
we can agree
or where more of us can agree.
And it doesn't always work.
Sometimes it's not going to work.
Sometimes the only way to reach greater agreement
is to answer a question nobody cares about answering.
And, you know, sometimes people are going to say,
look, we're divided on this, but it's more important
to actually solve the problem, divided or not.
But I'm hopeful that as we go into the next term,
and the next term,
and the next term that some of these habits of mind
that I think we sort of developed
over the last two years will continue,
and that people will remain alert to the values
of sort of like keeping talking
and finding areas of agreement,
consensus, compromise
which weren't completely obvious at first.
- Will it change how you write?
Is it harder to set down and write the angry dissent
when you know there's a little more work you could do
to move in a sort of more conciliatory direction?
- I think it has changed the way we've written
in these last two years.
It's changed majorities and it's changed dissents, right,
because you know the majorities
tend to do less,
so the dissents don't have quite
the same kind of thing to complain about.
Maybe there aren't any dissents
because we've reached complete consensus.
Maybe there are, but the majorities have tended
these last two years to do less,
and so,
there's not the kind of anger on the other side.
You know, I'm speaking in generalizations now,
and there are exceptions to that,
but I think one of the things
that the eight person Court
has done is to change the way we've dealt with each other,
to change the degree to which we're trying to find
some areas of common ground, and the result of that is,
in fact, to do less, and sometimes you have to do more.
You know, doing less is not invariably the right answer,
but sometimes it is,
and when you do less, there's less anger.
- So you mentioned losing your colleague Justice Scalia,
but what that also means for you is that
for the first time the configuration
of the Court you're on has changed,
that you have moved out of the junior seat
and you have a new colleague.
What does that feel like to sort of shift the status quo
of how things have been for a while and have them change.
- Well, can I first answer that question
at the most prosaic level
because it means
that I don't have certain responsibilities.
[laughter]
Because there are certain jobs
that are only the junior justice's.
So what are they?
The first is you have to take notes in conference
so that you can then pass on all the decisions that we...
Because nobody comes in the conference room
other than the nine Justices.
Nobody from the clerk's office, none of the Justice's
personal clerks, nobody from any
of the offices around the building.
But they all have to know what we've done
so they can report it to the world,
so that they can do all the various
administrative things that need doing.
So it's the job of the junior Justice to take good notes
and to be able to report to everybody
what it is that we've done.
And literally, at the end of conference,
everybody gets up and leaves except the junior Justice
and the junior Justice stays behind and all the Justices
chairs are then taken up by people in the Clerk's Office
and around the building who need to have this information.
So that's the first thing.
That's actually the most substantive thing
that the junior Justice has to do, believe it or not.
The second that thing that the junior Justice
has to do is open the door.
[laughter]
Now you wouldn't think that this
would be an assigned task, right?
- Life tenure required. [laughs] - Exactly.
But, as I said, there are only the nine of us in there
and occasionally, somebody has to
give us something, like suppose an important
phone call has come in, or, more often,
suppose somebody left their glasses
in their chambers...
[laughter]
Or left their coffee, or just can't do without
some particular file, and so they'll make a call
from the conference room,
and somebody will come and knock on the door,
and the door is very-- you'd think it's just a door,
but, no, it has to be two doors.
It's like a double door with a few feet in between
so that really nobody can enter the inner sanctum.
And the person who's bringing the cup of coffee,
or whatever, knock on one door, you'll get up,
you open the other door, take the
cup of coffee, deliver it to your colleague.
[laughter]
This is, can I tell you how seriously people
feel this is the job of the junior Justice?
[laughter]
This is the best way I can describe it to you.
Earlier this year, I tore something in my foot,
and I was walking around with one of these boots,
you know, and I was walking, but I wasn't walking easily
because I was like clumping along with one of these
big plastic thingamajigs on your foot.
And still, somebody would knock on the door,
and everybody would just look at me, you know?
[laughter]
So now, so now it's not my job anymore,
but still, after seven years, now,
so the last month, somebody will knock on the door
and I go, like this, you know?
It's become a kind of conference joke,
is like, how much Elena flinches, right?
[laughter]
Alright, the third thing that the junior justice has to do
is to be on the cafeteria committee.
Now, this truly is a form of hazing,
alright.
[laughter]
This is like, you are the person who,
one of your colleagues says there's too much salt in the
soup, and you're supposed to report that to the cafeteria.
[laughter]
And then once a month or so you go to cafeteria meetings,
and you think you've just been confirmed
to the United States Supreme Court--
[laughter]
And you think you're hot stuff, right?
And I think that this is the reason why they do this.
You think you're hot stuff, and they put your on
this cafeteria committee, and you are sitting there,
and you are having a conversation about what happened
to the good recipe for chocolate chip cookies.
[laughter]
So, I don't have to do that anymore either, yeah.
So I get all these responsibilities, yeah.
But here's the thing, I liked being the junior Justice.
I'll tell you why, not because I loved being
on the cafeteria committee, although it is a very
dean's kind of, you know, thing to do.
Like, as a dean, you're very used to thinking
about things like cafeterias, right?
So I had quite the success on the cafeteria committee.
[laughter]
I figured, if I were like approaching this as a dean,
I need a signature item, and I decided
that the signature item was a frozen yogurt machine.
[laughter]
And still, seven years later, people are thanking me
for the frozen yogurt machine.
[laughter]
But, here's why I actually liked being the junior Justice,
why I miss it a little bit.
So the way the conference works is
that the Chief Justice starts off.
He kind of defines the issues, he tells you what he thinks,
all the comments, all the votes,
can be reversed,
they're tentative, but you know,
you're committing to something.
So you say, here's the issue, and here's the way
I think about it an I vote to reverse.
And then it goes around the table in seniority order,
and nobody can speak twice before everybody speaks once.
And so the last person in the more formal part
of the conference proceedings...
I mean often there's an informal conversation
that breaks out afterward, but the last person in the more
formal part of the proceedings is the junior Justice.
Now if I had to choose between being first and being last,
I would be first, but last is a much better position
than eighth, or seventh, or sixth or something.
Because last gives you the ability to kind of listen
to everybody, to try to draw some conclusions
about the whole ball of wax, to try to think about
where the fault lines are, to try to synthesize
certain views and thoughts, and to sort of
do a little bit of a wrapping up, but more than just
a wrapping up but sometimes to try to move
the conference, all of whose views now have been heard.
And I thought it was, you know, other than being
maybe first or second or third, where you can really
define the conversation a little bit,
it was the best role to be in.
And so this last month,
I've, like, said my piece,
and I've sort of thought, okay, that's...
And then somebody else starts talking.
[laughter]
And it's been very disconcerting, actually.
[laughter]
Why is somebody else talking, you know?
I just wrapped up. [laughs]
[laughter]
So I sort of miss that, actually.
- So have you ever seen the movie Men in Black ?
You know, Agent Zed to new Agent J, time to put it on,
the last suit you'll ever wear.
Supreme Court Justices don't usually
leave for other jobs.
They often don't retire.
You've done a lot of different kinds of work,
and my sense is that's been a source
of great joy and satisfaction for you.
How do you feel about having life tenure
in what is likely to be the last job you'll ever have?
- Well, it's good thing that this is a good gig.
[laughter]
Because, you're right, in general I have had
a lot of different jobs in my career,
and that was one of the things I liked.
And you know, different people like
different things in this respect.
Some people find one job and that's where they're happy
always, but I sort of liked the fact that I sort of
hopped around a lot and did a lot of different things
and felt as though--
I always felt as though when the learning curve
started flattening out, it was time to find a new job.
Because I like a little bit, sort of, doing something
completely different and feeling as though the learning
curve is almost vertical and the challenges that
that creates, and it's absolutely right
that I will never have that again, right?
That the job is the job, and this is a job
I've committed to, but it does not,
I have to say...
I mean, you're right that I've always lived with a
certain kind of variety, but this
does not seem like a sacrifice.
[laughter]
I mean, first off, it's an incredible responsibility
to do this job, and you have to approach it
and keep on approaching it with an awareness
of that responsibility, that for whatever reason
you've been put in this place which does have
an enormous impact on the development of the law
and the development of the law means that it has
an enormous impact on the way our country goes
and the individuals within our country.
And so I think whatever...
Whether you feel like, "Ooh,
I feel like doing something new or not,"
you know, too bad at some point.
I mean, this is a serious responsibility,
and you should treat it as a serious responsibility
and give it your all
every year
until you have to stop.
But I don't want this to be, like, this is a big sacrifice
as I said because this is the world's most interesting job
if you're a lawyer, right?
I mean, if you were going to land in one job
and somebody said, well you are going to do this
for some number of decades, I mean, for me,
this is the job I'd pick, and it's an incredible
privilege to be doing it, and also,
now not every day,
but on most days,
an incredible joy.
And so, no complaints here.
- I think we're out of time.
Please join me in thanking Justice Kagan
for an amazing hour.
[applause]
- Thank you very much.