Transcripts For CSPAN Justice 20240703

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 they will agree with the decision that the courts make. Kite quite the contrary. The court sometimes has to do things that the majority of the public does not like. But people do want the courts and have a right to expect the courts act like courts and that they do not look like other political actors. Or they dont look like other parts of our government which are made up of lyrical actors. They look as though they are doing Something Different. When the court goes back and work and our law about president talks about this quite a lot. It makes people think that courts are making it up on the fly. That is an extremely damaging thing for me judicial system and i think for our country. Host i would like to ask about the courts rule role with regard to our political and democratic processes. So, in the verna veg versus the national committee. Your dissent defended the voting right act against arizonas out of sync law where you argued that minority voters were disproportionately likely to have their vote thrown out by the law. Do you think the voting right act would be more liberal to afford special protections to minority voters . Guest i dont think it would have been more liberal than what it was written as in other words, there are some people that sometimes they say you should give some kind of statute a liberal reading. I do not think that is the case generally and i do not think it is the case with Voting Rights act. What you should do is read that you barely. The reason why the court got it wrong was not because it did not put a some of the scale, it is not because it did not read the voting right act liberally, it is because it did not read the Voting Rights act fairly. It did not understand that the Voting Rights act was one of them is six and said, broad, farreaching piece of legislation that congress ever passed in the country. But they gave a crabs reason to the Voting Rights act. It unnaturally restricted constricted. If the votings right Voting Rights act was read fairly, that decision i read in my dissent would have come out the other way. The Voting Rights act was pretty clear that what it was doing was ensuring that everybody had an equivalent right to vote. And everybodys vote counted in the same way. So that impediments to voting, obstacles to voting, steam that diluted some peoples vote as compared to other peoples vote on the basis of race were for bid in. And that responded to a very dire horrible history in the country. Of preventing black americans especially from accessing the polls and having their vote count in the same way that as white americans vote. And the votings rights Voting Rights act was passed by congress, it is a powerful indictment of the active. In my view, it was read in the way it was written which is to say it read fairly, it was read as they rode it it would have prohibited the practices in that case. Host lets talk about another practice that affects democracy. Gerrymandering. In a case of rousseau versus common cause your dissent lamented the courts refusal to remedy the constitution violation of parts of gerrymandering. And in your words it deprives citizens of the most fundamental of their constitutional right. The right to participate equally in political process and that the gerrymandering in that case dbase and dishonored our democracy. The majority in that case tells us that gerrymandering involved political questions. Beyond the reach of federal court. If that is true, what is the role of courts and policing in the democratic process . Guest i think the point of the dissent is that it is not true. The courts can play a role area and have a role in this process. Let me tell you about why. And then what else we can do. It is still the case that state courts using state constitution can try to prevent partisan gerrymandering. And many of them have and do. But with respect to that opinion which was about courts under the federal constitution, what was striking about the cases that it was a case in which everybody agreed that gerrymandering involved did violate the constitution. There was really no argument that it did not violate the cons fusion. These are the cases in which it could be, you can imagine different types of gerrymandering, you take a place, estate, lets say a state, lets say were people are roughly divided. Some, half like republicans have like democrats, but then the District Lines are drawn so that it is wildly out of proportion. And 13 seats of 10 go to one party and three go to another. That was one of the gerrymandering in this case. And another was in a state where there were more democrats than republicans but it deprives republicans of any inability any ability to elect even one representative in the entire state. They can work in different ways, but essentially what they were doing, we have before us one republican gerrymander and when democratic gerrymander so that she was on both feet. And what the legislature had tried to do was just to prevent people who supported the opposite party from merely having any fair shot to get representatives of their choice elected. In the appropriate number of districts. What is the appropriate number of districts is a hard call. The chief justice who wrote the majority opinion made a persuasion case that i agree with. You cannot have court looking at every single District Line and figuring out do you, should this be a 6, 7 gerrymander, should this be a six7 split or an 8 5 split. But there was no need to do that in this case because the court had created a series of mechanisms to prevent extreme gerrymandering. There were a lot of things around the edges for political process to work. There was a lot of room for politicians to engage in the kind of ageold practice of drawing lines and making political judgment about how districting should operate. But there were mechanisms to prevent extreme gerrymanders. The majority of the opinion said that even that is too much for the court. They should not be involved in it. I thought that was a wrong decision. Many of the lower courts had shown that it was really possible to separate out the really bad gerrymandering from others. And what is striking about the opinion is that it allows when everybody understands as a constitutional violation to go forward because of a judgment that the courts cannot do anything about it. I think that that is wrong. And i will just say in this you are asking me these questions i guess because it is about the future of democracy area i think there is one thing the courts appropriately do. I think there are so many things where court should be restrained, or they say we want to lead the political process work we want to leave this to actors who are elected by the American People, but the one place where the court has most responsibility is to actually protect the mechanism of democracy itself. So it is the democratics democratic system structured in a fair way. If the rules are fair primarily if that means if everybody vote everybodys vote is counted and it is relatively equal to every other persons vote then you let the democratic process work and whatever outcomes it produces it produces. But the necessary thing is to make sure that the rules of the democratic process are not completely skewed from the outset. Because of a are skewed, then the results are going to be skewed and indeed illegitimate. So if there is one place where the court has a role where the court should not be embarrassed about taking it is to protect the institutions and representation of government. That is honestly why a thought this was the most important one i have ever written. And the decision may be very sad. Host i want to ask you about another case. That is the recent student loan forgiveness case. Biden versus nebraska. In that case, chief Justice Roberts and the majority opinion striking down the Biden Administration student loan forgiveness program. And that is by referring to your dissent as follows. It has become a disturbing feature of some recent opinions to criticize this decision with which they disagree. As going beyond the proper role of judiciary. We have employed the traditional tools of decisionmaking. And reasonable minds may disagree with our analysis. In fact at least three do. We do not take this heartfelt disagreement for disparagement. It is that the public not be misled either. Any misperception would be harmed old to be in the touche and and our country. And you respond to the chief justice by writing from the first page to the last, todays opinion, it departs from the demand of judicial restraint. At the behest of a party it has suffered no injury. The majority tested Public Policy issue properly belonging to the politically accountable branches and the people they represent. And saying so, and saying so strongly, i do not it all disparage those who disagree. The majoritys right to make that point as well for us to say reasonable minds are found on both sides of the case. There is nothing personal in the dispute but justices throughout history have raised the bar when the court has ever reached. When they exceeded their upper role in the nations government. It would not have been disturbing and indeed damaging if they had not. I mean it would have been disturbing jean disturbing and damaging if they had. I dont think of ever read an exchange between the majority opinion and the dissent for with the majority criticizing the mode of criticism of the dissent. Is there some unspoken concern here that prompted this exchange . Or either of you worried that the public might misunderstand the disagreement or the tone of either opinion . Guest i feel like to provide a full answer to the question we should have achieved justice here. Host [laughter] guest here beside me we could go both give our respective answers for the respective arts of the exchange. You know, here is what i would say, i would say i agree with the one of the things the chief justice said and i disagree with the other. I will start with the disagreement. Read me the first sentence of the chief justices opinion again. Host he said it has become a disturbing feature of recent opinions to criticize the decision in which they disagree. Oak guest ok. Host disagree the decision with the proper judiciary. Guest i do not think that is disturbing at all. I think it would be disturbing as a dissent that to think that the court had gone beyond the proper role as the judiciary. It would be ill serving if you did not say it and pull your punches. If you said we will look the other way or say that i believe the court has gone beyond the proper role of the judiciary and has trespassed on other institution prerogatives. Or has been a court that has not acted like a court. And yet im not going to say anything, i think that is what would be disturbing pulling your punches in that way. I do think, on the other hand, here is what i do agree on. I think to the extent that he was concerned i wrote a strong dissent. It was a strongly worded dissent. This is what i thought about that case. It was a little bit summarized in the passage you read. I thought that would have been before the court. We have standing rules that require that people who come to the court with constitutional complaints have themselves suffered injury of some kind. The plaintiffs before us i thought had not effort a constitutional injury. They were states who were complaining about the Biden Administration loan forgiveness program. And the fact that a lot of students or former students had got more money might be policy and it might be good policy. It would be hard to see how the states were injured by that. These were policy by the state. They thought it was bad policy. They came in and thought it was we are not supposed to allow that happened. To think the policy agreements become evil cases. And i also thought, putting that aside, the decision was wrong substantively. They gave the department of education the ability to make these kind of calls when emergencies occurred and the department of education had used that Authority Just as congress had expected it might be used. We were wrong as a sub stance of matter as well. I really thought the court was wrong to allow the case in the first place and then the court had basically trespassed on the prerogative of the politically accountable branches to make policy. Again, the policy may have been stupid policy, but it was not our role to say that. If that is what the politically accountable branches had done by way of statute. And then an administrative role. So i said the court had not acted like a court. It is not a pleasant thing to be told that. When i am told that by other justices i do not like it either. So, you know, but that is sort of a nature of the business. It is that in our judicial system there are judicial systems where there are no dissents. Once some of you they pack up and go home. Our judicial system follows a Different Court course and i think rightly so. They say we want to hold majorities to account. We want to allow people to express their disagreement so that maybe the next case comes along the same mistakes are not made so that maybe when the in years to come the law can go in a different direction. That is why dissents are important. Again, like i said, i just disagree that it is not in the nature of the sense of some of the most important dissents of the country in our history are about why the court overstepped its role. What i do agree with the chief justice on is that nobody should take that personal in any way. I admire the chief justice enormously. I admire him in the person and as a judge. I admire him as the institutional leader of the court. There was nothing personal about this. I think the word was disparagement about this. And you know, to the extent where you thought well people do not understand when they read a point, counterpoint like this, that you can say both of those things. You know i vigorously disagree with the decision he reached but then i admire him as a judge. People do not understand this and i am trying to suggest that both of those can be true. I agree with that. I mean i think those things can be true and people should understand that as well. Host i want to talk about that a little more. Theres a lot of focus on disagreement like that or in the press in particular there is this picture of an ideological or politically divided court but there are a lot of opinions where they are 90 opinions where you were all in agreement or there were other opinions where it is not clear that you can see any particular ideological divide between the justices. Can you give an example of cases where greed cannot predict how justices came out on the basis but it is cases not get more attention from the press . Guest for sure there are cases like that. Our stuff, we probably do 3040 it varies by the year but 3040 of the opinion varies unanimously. So that we all agree with any divide you can come up with. There are cases where we are sort of scrambled up and unpredictable and hard to explain. I was preparing for the for our first conference of the year the other day and there was a position that had to do with how to understand the confrontation laws which allowed a criminal defendant to confront the witnesses against him. It turns out that justice is on the court have been all over the map on that. Not any kind of ways that would strike a person as like, oh, of course, it is sixthree or Something Like that. Just like that everything is rambled up. Usual allies are not allies, usual people across the vr on the same side. It is definitely things like that. And perhaps people do not notice them quite as much as the more easy to explain used to be 54 now 63 opinion. Occasionally people notice them. I will just say Justice Justice on a minor at an 20 my nora one of the justices and i got into a degree about a soap green and whether it has a use or whether a foundation had to pay a photographer whose photograph was being used. And it got an enormous amount of rest. And partly it is because of the kind of a fun case involving art but partly i think it is because how likely are these two women that often agree with each other fighting. So sometimes, that, we fought pretty vigorously. And so sometimes that exact of the usual allies are not doing what they used to, there are plenty of cases where the two of us disagree, but it was like, oh, lets watch them cap right or Something Like that cap t fight or Something Like that. [laughter] guest but as to why those cases it less than usual attention, i have to be honest it has to be said that some of the more important cases fall along the predictable lines. Not all of them, but when in the course of a couple years you have a case like last year we have a case of pivoting affirmative action an important case involving lgbtq rights the student loan case, the prior year you have the right to abortion overturned and you had a very important case of Climate Change and the ability of government to come back combat Climate Change. When all of these are falling 63 it does not strike me as surprising. That people would talk about that. Host so, i want to ask about, we are here with notre dame and i want to ask about the role of faith in your life and your professional career. Tell us a little bit. Guest well, it is surely important to my life. I am jewish. You know a practicing jew. It is important to me religiously and culturally. I am steeped in, you know from an early age steeped in the history of the jewish people and i went to Hebrew School for a lot, a lot of years and then continue to go to synagogue on many occasions. Youre catching me now in, last weekend i spent all weekend at the synagogue and then after i go, i am here and go to your football game, [laughter] guest this coming week sunday and monday i will spend all of those days it is the most holy day of the jewish year it the opportunity for jews to reflect and repent and get square with get your relationship right with god and get your relationship right with other human beings. It is a time when i reflect a lot about my religious life and my religious practice. And how it can help me to be a better person. So, my judaism is important to me as a human being. I try to not make it important to me as a judge. I try to keep the one thing separate from the other. You know when you think about what religions are and what they do, they are systems of morality. They are code of morality. Certainly the jewish religion is full of moral and ethical receps the precepts of morality just like any others, i think that his personal morality. I think it would be improper for me to substitute my personal morality for the legal rules that i am supposed to enforce further provisions of law that i am supposed to interpret. So, being jewish is super important to my life, but i hope that being jewish is of no importance to my judge life. Host so you mentioned code of morality and code of ethics. Right now, we see the press certainly, theres a lot of talk and conversation about a code of ethics for the for divorce and the justices. There is scrutiny over the justices relationships with particular parties or even with law schools. And law school teaching. Do we need a code of ethics for that . Guest well look, as a number of people have recently been a subject of conversation in the court, the chief justice recently gave us each in which he says that the Supreme Court had to be held and he was committed to making sure that it was. To the highest standard of conduct. That is got to be right. And right now we are in a situation where we have committed to following certain kinds of ethical rules respecting judges, but have said it will only be guided by others. So, we have committed to following the gift rules that other judges follow and the outside income rules that other judges follow. But other judges have an incident code of ethics that governs everything they do. There is some concern, and i think legitimate concern, that the Supreme Court is an unusual court in certain respects and some of the rules do not fit quite as well at the Supreme Court level as they do in the level of lower work, but of course what we could do is just adapt the code of conduct that the other Court Systems have in order to reflect those slight or certain differences. I think it would be a good thing for the court to do that. It would help in our own compliance with the rules. And it would i think go far in persuading other people that we were adhering to the highest standards of conduct. So, you know, i hope we can make progress. I know Justice Kavanaugh was recently at an event where he said he thought we would and you know soon and im not sure how he phrased it, but i hope that that is true. Host and you tell us who the holdup is . [laughter] guest no. Know what goes on in the Conference Room goes on in the Conference Room area you know and i did not want to suggest that there is one holdout. This is for various reasons having to do with certain differences between the supreme and other courts. There are complicated issues here. There are totally goodfaith disagreements or concerns if you will. There are things to be worked out. I hope we can get them worked out. Host i withdraw the question. [laughter] host so you are arguably one of the best writers on the court. A lot of were orders agree that that is the case. Do you have any tips for Young Lawyers, law students and Young Lawyers as to how they can write better. Guest first of all, thank you. Thank you very much for that complement. I dont know whether or not it is true. The first role is edit, edit, edit. There are really very few people, i am certainly not one of them, whose first draft is a gift you know. First drafts for me to see mean to be six edit by second drafts and succeeded by third drafts and things finally come into shape. Then you find good people to edit you. My clerk formed an important part of my writing process by editing draft. And i know that they get better because they are outside readers going this does not work, this does not work structurally or substantively. And that kind of thing. And it makes my draft better over time. That is my first piece of advice, the second piece of advice is read well. Im a big believer in the fact that people who read good writing are more likely to absorb what that sounds like, what it feels like to write for themselves. And it also works conversely. Sometimes i pick up a brief and i think every minute i speak spend with this brief i become a worse writer. Host [laughter] guest but sometimes i think of a brief and it is the opposite. So, read well. And i think those are but two big ones. Host i know you are an avid reader and youre a fan of jane austen novels, can you tell us what you might be reading now and can you tell us anything about guest yeah. Oddly enough i have to admit that that i told but i told the dean that may this that make have led to this question. Im on the plane and i am reading this Popular History book called fever in the heartland which is about a book about the ku klux klan in indiana in the 1920s where the clan is very powerful in the 1920s and in fact they all used almost capture the state house. Im on page 140 and there we are in south bend. And you probably know this story, but i will tell it to whichever ones of you do not know this. You have great moments in the universitys history where the kkk, they come to south bend to put notre dame in its place. And make it clear to this Catholic Institution it should be wiped off the face of the earth. And the students kind of organized against it. There is like, what we think of now as a demonstration and the counter demonstration and the students basically route the kkk and send them out of the south. This is the days of the four hearse men four horsemen and they say the quarterback of notre dame, instead of burning the cross, they had put up across with red electric bowlb ulbs bulbs and the quarterback of notre dame started throwing stones and knocking out the bulbs one by one. The students in them packing. Host certainly a history we are proud of. [applause] host that is a great story. You spent a lot of years as a dean at harvard. One of the things we have seen happen around College Campuses in america is the rise of cancel culture. And with cancel culture weve got a rise in selfcensorship. What do you see as ways that we can, as law schools or even undergraduate in touche and combat cancel culture and create an environment where people feel free to speak their minds. I often get asked by students out of a take a Free Exchange culture out to the workplace with them. Guest i know with the goal is the goal is what you suggested. There is too much disrupting beakers too much added books, theres too much trying to insulate yourself from ideas with which you disagree. All around us. And it is on both sides of the political spectrum. It is wrong and counterproductive for our democracy and society. For our democracy, this nation cannot work and cannot do the things that it needs to do unless people get along with it talk with each other and can really try to understand each other and learn from each other. And try to put their Heads Together and work for a common good with which presumably we all want this nation to prosper. It is not going to happen unless people Work Together across various disagreements, profound as they might be. I think it is especially important in educational institutions, as to educational institutions are supposed to be about learning, exchange, and engagement with ideas, including ideas that you do not like. If nothing else, nobody has ever managed to persuade a person who they do not understand. So, put yourself in another persons shoes and try to figure out where that other person is coming from and why she thinks what she thinks. If nothing else, in order to persuade that person. You may also learn from that person and he may share something that you did not realize you shared. And that sort of exchange is what universities and other educational institutions are all about. And i should say it may be especially in law schools. Stanford law school recently had a very bad episode with respect to one of these things. A lot of good things came out of that bad episode where a judge was disrupting and preventing being a conservative judge. But one good thing that came out of the episode is a former colleague of yours wrote this letter to her student body. The letter is really quite eloquent about how the law especially as an institution, it is all about hunting different wines of you and how you were going to do your job as a lawyer. If you close your mind and close your ears to different ideas and ideas that you might find in are mostly objections. You cannot operate well as a lawyer unless you can engage those ideas and understand them and try to figure out what, why they are held by people. Then you can go about trying to counter them. But so education law and democracy in general so much depend on this process of neutral mutual engagement of learning from each other, listening to each other, of, kind of an active engagement and persuasion that really does depend on thinking that other people are operating in good faith. And that you know, that there is something to be learned from engaging with them. Host i am wondering if you could either confirm or know. Dashboard deny a rumor that has been running rampant on this campus this week. As you may know, the espn called game day here tomorrow. Some people think you might be the guest celebrity kicker . [laughter] guest i think i will deny. Im also aware by the way that i might have worn the wrong color. Host [laughter] guest i realize that. You know you come with what you come with and i came with a red jacket and somebody pointed this out to me i felt very bad about it. [laughter] guest then the person said just tell them your heart is green. So, ok, my heart is green. Host [laughter] well, if it is not, we have supplied you with plenty of green clothing for tomorrow. [laughter] guest but not over the gift limit. Host [laughter] yes. So i have one last question for you, ohio state or notre dame . Guest well i think i have already said notre dame. [applause] [applause] just for that i have a special gift for you. Also not over the gift limit. [laughter] thank you so much. I have to move this out of the way. [applause] thank you so much. That is so great. I love this. Thank you for joining us. It is going in my office. I hope so. Thank you very much. Thank you. Today Howard University hosts a Panel Discussion on how to increase female representation in elected office. It is monitored by Stacey Abrams and includes black women freshmen members of the congress seeking to encourage students to seek careers on capitol hill. Watch on cspan now or online at cspan. Org. Tonight watch sees bands news series in partnership with the library of congress, books that shaped america. We will feature the federalist. It is a compilation of essays by alexander and James Madison and john jay urging for the ratification of the newly drafted u. S. Constitution. The u. S. Court of appeals for the armed forces and colleen sheehan, director of graduate studies at Arizona State university will be our guests to discuss why the essays are considered one of the most important references for interpreting and understanding the original intent of the constitution. Watch books that shaped america featuring the federalists tonight live at nine eastern on cspan or online at cspan. Org. And be sure to scan the qr code to listen to our companion podcast where you can learn more about the book that is featured. Over the weekend House Republicans set up floor debate for iseekn four yearlong prriations bills. It is not yet clear they will have the votes to adopt the expansive role wchovers debate and 440 amendments to agriculture and state foreign opations measures. Current federal funding exre on saturday and a shortterm continuing resolution kp federal agencies lights on yonder september 30 was still nowhere in sight. The house is observing yom kippur today but will gavel in tomorrow at noon eastern and we will have live coverage here on cspan. And on the others the capital, the son is also considering federal spending tomorrow beginning in the afternoon at three eastern live on cspan2. Senator bob menendez said he would not resign his seat ignoring calls for him to do so amid allegations of bribery. The new jersey democrat offered an explanation for the cash found in sue pockets in his home saying the money was withdrawn from his own savings account. A family habit picked up during their years in cuba. This is about 20 minutes