Transcripts For CSPAN2 Supreme Court Justice Elena Kagan Remarks On The American Legal System 20240713

Welcome. Students, colleagues, guests, Justice Kagan, friends and family of roger wilken. Its my pleasure to welcome you all to the Second Annual Roger Wilkens lecture, which this year takes the form of conversation of Supreme Court Justice Elena kagan. My name is matt and an associate professor of policy and government and director of undergraduate program in philosophy, politics and economics. The program is honored to be the institutional sponsor and host of the Roger Wilkens lectures. We are grateful for the trust and support placed by the university. The attraction between the pgd ferdinand of these lectures im glad you asked. I spent a fair amount of time explaining what it is and what makes the program unique. I can go on. Really, i can go on but today im going to go straight to the bottom line. It explained that the scope helps students that create Better Solutions through the difficult and pressing problems that arise in the public life of the complex society. The problems that arise in the process in what Roger Wilkins in the first chapter of his autobiography had called with immense understatement complicated at times such as there are today. We offer the foundation for students to build meaningful careers in civil service, journalism, business hand of the law and other socially engaged fields and endeavors. In this regard its my hope that the generations of students will set their sights on the example set by Roger Wilkins life and career. Again, we couldnt be prouder of our association in this legacy. I have three brief Program Notes to make before turning over the podium. The first is you are going to be able to find an archive of this event as well as past lectures and future lectures and more information about the program on the website which is ppe. Gmu. Edu. Dont take picture pictures of consideration of those around you. At the conclusion of the event im going to ask you all to hold your seat and we will allow Justice Kagan to leave first and then we can followup after her. Without further ado, it is my pleasure to introduce the president of george mason university, president anne holton. [applause] thank you, professor, and thank you all. What a great crowd. Its a delight to see you all today and i invite you to join me in extending a warm welcome to Justice Kagan. We are thrilled to have you here at this access to excellence. We are so proud of george mason and one of the things we are proud about here at george mason as we can offer our students opportunities like this, to hear from you today. We are here for the Second Annual Roger Wilkens lecture. We like to think that, well, Roger Wilkins had a lot of Important Roles in his life, but we like to think that his most Important Role was his 19 years of service here at george mason university. Then during and fostering the growth of Young Manning young minds and lives is a professor of history and culture, the program is one that honors our most distinguished professors and i believe we have a number of robinson professors in the room if you all could give us a wave. Thank you all for being here. He did a few other things in his life. He was the first africanamerican in the top leadership role at the department of justice in the 1960s where he helped president kennedy and then president johnson passed the amazing important Civil Rights Act of the era. He was at the Washington Post and New York Times editorial role and he was at the Washington Post during the watergate era and rode some of the important editorials that shared in the Pulitzer Prize for the team won for that work. So, we are excited to honor him today through this continuing lecture series and we are so excited to have Justice Kagan here with us today. She and i have a number of things in common that you may not know. We share our undergraduate and graduate alma mater. We are both princeton undergrads. She wrote the daily princetonian, which i read at harvard she was on the wall review, which i didnt read. [laughter] and then we went on to have a significant overlap in our professional lives as well with a judge on the juvenile and Domestic Relations District Court for the city of richmond is literally the baby court in every way, and she as you know is a justice on the highest court in the land. Even though the courts are quite different, there are some significant overlaps and they are both all about the rule of law. The judges get all excited about the rule of law and not everybody quite understands that all the time, but the fundamental part of the fundamental essence of the rule of law is the principle that all rules apply equally to everybody. So, it is fundamentally about the quality. When you travel in other countries as i have the occasion to do in life where the rule of law doesnt apply, where courts will where there isnt an independent functioning judiciary where people in certain parties or groups dont have to comply with the above rules others have to comply with, you remember the importance of this thing we take for granted in our system, the rule of law. One of the consequences of having an independent judiciary system as we do is the judges cant always speak freely to defend their positions and they sometimes have to take unpopular positions because of the rule of law so dictate. And yet they can only speak for their opinions. Therefore it makes it extra special to have an opportunity to hear from the justice here in an academic setting where we can hear more about how the whole system works so im very excited to hear her conversation today. Before i turn the microphone over, i want to acknowledge that we have professor wilkins ice, patricia, here with us who is a retired from her role as professor of Georgetown Law School and served in many other Important Roles as well. His daughter amy is with us, also a great advocate especially an advocatofspecialty and advocr children and families and all kinds of important opportunities, and most especially i am delighted that we are here with a chance to welcome his daughter elizabeth who will be following me on stage in just a minute. Elizabeth is the senior counsel to the bc attorney general. She is a yale undergrad, we will forgive her, and undergrad, but most importantly today she had an opportunity to clerk for Merrick Garland on the dc court of appeals and then for Justice Kagan at the court. For those of you that have any inkling of that, the law clerk to judge relationship is a very important one, partly because judges are so isolated. Isolated. Your clerks are your family, they are your when i went t goie world, and i know that elizabeth is thrilled to be here with us and Justice Kagen db to kagan and vice versa. I will hand over to elizabeth wilkins. [applause] good afternoon and thank you, for that introduction. It is a pleasure to be here today speaking at the lecture that honors our dad and also introducing my former boss and mentor. It feels fitting to me that we are in a sense bringing together these two intellectual giants that have dedicated their career to public service. Above all else, our dad taught to us, his students coming in freely to anyone who would listen or read that we each have a fundamental civic duty to make our country better. He brought all of his considerable talents and intellectual firepower to bear on major questions of justice in his lifetime using whatever position or power he had in the service of those that have less. He did that most elegantl have h his pen writing time and time again the calls to evil what he saw around him. Justice kagan in her term spent a career putting her talent to work in service of the public good and expects the same of others. I can tell you i remember when i was interviewing to clerk with her, she noticed i worked for the Obama Administration at the time and i wasnt much older than many of the people in this room and she asked me one question about the experience was the most important thing that you did for your country. To be clear, i was like 24 at the time i was working the Obama Administration so i felt a little overwhelmed trying to answer this question, but that is Justice Kagan. She has high expectations. There are no wallflowers were waiting around. You better show up and get things done no matter what your position is. That certainly has been Justice Kagan mo throughout her career. A born and raised new yorker, she attended princeton, oxford and harvard law before starting her career as a law clerk first on the dc circuit and then to Justice Thurgood marshall. She stopped briefly before moving to academia as a professor at the University Law school. She then was asked to come into the Clinton Administration for the associate white House Counsel and been domestic policy adviser. She went back to harvard law as a professor and became the dean where shes widely credited for institutional reform. President obama then appointed her to be the first female solicitor general of the United States and then quickly followed up by appointing her to the Supreme Court. Two less well known but nevertheless very important achievements, Justice Kagan was the dean who brought free copy to harvard law free coffee to harvard law and frozen yogurt to the Supreme Court which i appreciate very much. In all seriousness, i was extremely fortunate to have clerked for a person like Justice Kagan. If our father taught me how to be passionate, dedicated to service, Justice Kagans chambers of the diligence, tenacity and commitment to excellence necessary to give her absolute all. I will not soon forget going to work before 5 a. M. When the moon was still high when working on an opinion, but i also will never forget what it seems to take your responsibilities resps seriously, to turn over every stone and to pursue every line until you are sure youve gotten things right. Like our god give you coul good, shes known for the power of her pain and every sentence is in place to construct the most sustained argument and possible. Her commitment to writing accessible, forceful and exceedingly well reasoned opinion for parties in the case, for the court, and for the development of our lives unparalleled and we are all lucky to have her. This afternoon, Justice Kagan will be in conversation with Steve Pearlstein to whom our family is extremely grateful, and he has been the driving force behind these lectures honoring our dad and like my dad, he was is a professor here at george mason and like our Data Companies a semireformed journalist originally from massachusetts he started out as a tv reporter and even started his own political magazine before coming down here to work at the Washington Post. He won a pulitzer for his reporting on the coming financial crisis before starting here in 2011 where his dedication to his students, to the institution and to learning is ever evident. I look forward to a great conversation. Thank you. [applause] good afternoon. I dont know whether any of you solve this, she has great red shoes. Next year im going to wear my red shoes. [laughter] thank you all for being here and thanks to you, Justice Kagan. Is an honor. It really is an honor. First off, i do everything he elizabeth asks me to do or tells me to do, but this one was a really special privilege and treat because you know, i never had the opportunity to meet Roger Wilkins. I feel as though i know him through his daughter and his wife. He was such a superb educator and journalist and lawyer and most of all, public servant. Its great to see you carrying on his legacy, elizabeth, and its great to be here for this event. So, there were a lot of undergraduates and some law students here. This is a very diverse campus. People from all sorts of countries and all sorts of walks of life and classes but they all have one thing in common. They are all in massive anxiety about their career. [laughter] chill out. [laughter] so, lets talk about careers, particularly yours. Harvard law school, law school, white house, dean, solicitor general. Was there a grand plan . Did you plan that whole thing out . Yeah, it was all written down. Thats a joke. [laughter] in high school though you appeared in your yearbook wearing a gallon and holding a gavel. Was that just coincidence . A bunch of us raided the costume closet in the Drama Department and that is how i ended up, but i had no idea i was even going to go to law school before basically the year i went to law school. I guess my view of the way things have turned out is that most of it was serendipity and unplanned. College students, law students, they claim t too much and the bt advice you can give people is planning some is good and important, but its really just keep your eyes open to opportunities that might just pop up, because i think most of life happens that way. Things come about that you never would have expected and the only thing you have to know how to do is how to grab those opportunities when they do arrive. And figure out the good ones from the not so good ones. Youve had some setbacks. At one point, you were nominated to the dc circuit by president clinton and as it sometimes happens, you didnt get a hearing or vote. At one point you were a candidate for the president of harvard. Tell us if you have gotten those jobs you might not be sitting here today. So how should we think about this kind of disappointments . Those are high cost of disappointments. [laughter] you know, i also had some. The funny thing about if somebody looks at a resume that has all these great jobs on it and it doesnt have all the jobs you didnt get. There are plenty of jobs i didnt get along the way that i thought i wanted, but i dont know. I think what i tended to discover and you know, the example that you gave about the dc circuit judge schiff is a good example of that. When a door closes someplace, a window opens. That might be magical thinking that it happened often enough but i believe it. Sometimes the disappointments are the best things that ever happened or could ever happen to you and that was true for examples of the judgeship. I was nominated to be a judge minus 39. So i would have been very young and i would have spent my entire life on the court. I love the work i do, that when i look back on it, i think you know, instead i had a decade where i did many other things and i developed lots of different sorts of skills. Now i am a judge, so i get to that, too. It was a good thing i think that happened that i had an opportunity to explore some things i never would have had a chance to add that come about in the way i thought i wanted. Can you convince yourself of that at the time or is it hard to . Its hard to convince yourself at the time. He went back to teach, and i love teaching. Ive always loved that. And then just a few years after that, i had the opportunity to become the dean of harvard, and i learned so much in that role. I learned how to do so many things that i never would have you know, do required you to be a person i didnt really expect myself to be and to develop all different kind of skills. It was a very steep learning curve which the jobs i like are those that require you to learn all kinds of new things. It was a great decade before i got to where i am now. So lets talk about the law. What did you learn about the law and about judging from Justice Marshall . And i should say that you were one of Justice Marshalls last clerks. Wilkins was one of writing his first out of law School Working for Thurgood Marshall before he was the justice when he was a legal defense. Said, the line goes from voucher marshall to roger to you to elizabeth, and i hope beyond. So, what did you learn from Justice Marshall about the wall and judging . Mostly what you learn from Justice Marshall is how people can advance justice. I dont think anybody has ever done so much of it as he has. I mean, i view him as the greatest warrior of the 20th century, in part because he did the most justice in his time, and in part because he was just a great lawyer. He was miraculously skilled at all kinds of different things. You know, you dont see lawyers like this anymore, people who were great trial lawyers, people who are great appellate lawyers. He did criminal cases, civil cases, he did you know, one day he was arguing before the Supreme Court, and the next day he was on a train down to some small segregated town in the deep south where, you know, he was fighting to defend somebody. A lot of the cases he did with Death Penalty cases in front of all white juries and it was hard to win cases. Everything he did, whether it was the big cases, the kind of brown v. Board and developing the entire strategy, and whether it was the small cases, which was just making sure that individual defendants, not so small individual defendants got the justice they deserve. Everything he did was all about bringing justice to this country, and in particular to the africanamerican community. But to the whole country. And he was a great storyteller. He told stories about his life. We did a lot of usual things that clerks and judges do when we would talk about the case and at some point he would segue into story telling mode and we would talk about childhood in here about his time at the law school and developing within the law school and the strategies led to the board and the eradication of jim crow and we would hear the many cases and he never repeated the story, he had hundreds of them and it was a lesson in American History and american law a lesson most of all in how one person can do justice. Nobody is ever going to be Thurgood Marshall and probably nobody in this room will be. But you could take away lessons about their own life, what makes something worthwhile, the kind of gold entered goal that you audit set for yourself in the good that people can do. Anything about judging our being a justice that you learn from them perhaps now you consumer clearly. It was a different time and were different people and i would never say that i was the same kind of judges he was, is just different times in different circumstances, different personality but i suppose one thing that i really appreciated at the time was the way he treated his clerks, he was a top master to because you can tell from elizabeths conversation that im kind of one. But you never didnt know who was in the chambers, he had a couple sayings that may be remembered that, one sometimes they would say to him, you have to do this in the 26yearold way, you have to vote this way or you have to join this opinion or Something Like that and he would say there are only two things i have to do to stay alive and die. [laughter] and sometimes he would Say Something and he would say you see that commission over there and it was the commission with Lyndon Johnsons name making him a Supreme Court justice and you would literally make us get out of the chair and walk over to that convention and repeat which man was on there. But at the same time, he really respected his clerks and he thought we were people who were going to do great things. The interaction that he had with all of us is something i think none of us will ever forget and i dont have the stories that he has and nobody should treat me the way they treated Thurgood Marshall but i like to think about when i talk to my own clerks. Is there some justice in history that is not on the court today that is your model . And if so why . I guess Louis Brandeis is the person i would prefer that. I actually sit in the same chair as him. On the dices . Not on that because we all change chairs as we get senior but the court has a tradition where you know who sat in each chair and it depends on who replaced him. So for my seat, it is me and then the justice i replace who is john stevens, an absolutely superb judge and man who unfortunately passed away last year at the age of 99, unbelievable life. And then prior to john stevens was William O Douglas who served the court for many, many years and i actually call the chair that i sit in the longevity chair because everybody also seems to be on the court for 30 plus years and just like three justices back, just as brandeis who was nominated to the court around the time a little bit after world war i and served there in a very distinguished and noble way when he was a brilliant brilliant writer, my favorite opinion of all time was written by him. What one was not. About the First Amendment and why we think of the First Amendment of so important. There were two justices at that time he wrote magnificently about the First Amendment, one was just as brandeis and justice holmes. Justice holmes has some of the language that we know about today, the marketplace of ideas in a very commercially oriented understanding of how the First Amendment operated and ideas were in the marketplace and whatever prevailed in the market audit program. But just as brandeis had a more poetic understanding of the value of spree speech and i think the opinion for everybody to read if you go home and want to read an opinion its a concurrent opinion in a case called whitney. And it talks about the First Amendment as connected in a Democratic Society and what the First Amendment does for the free People Living in a democracy and is very beautiful in the thing that makes you cry, and appeals to american ties values and i think what he did all the time, he had a deep understanding of American History, he knew a lot about the founding but also knew a lot about the whole sweep of American History and he brought the knowledge to bear in his understanding of the country and the law and the kind of law that the country deserved. He was policy reform in massachusetts before he became a judge. So he was always so always law involved in some way. I want to ask you about the interview process. You interviewed with president obama twice. I guess the second time was better. Its not true, the second time was not better. Thats probably the one that left the impression and probably left a good impression thats why you are here. What did the president ask you, what were they looking to find out when you have these conversations come you talk about the weather, family, what do talk about . We chat for a bit, i did the have these two interviews and one was with my colleague he eventually got the job and i had just started as a general and id been solicitor general for three months and all of a sudden there was a vacancy because Justice Souter left and i was put on the short list and i think president may be interviewed for people or Something Like that. In a walkin and we chit chatted a bit but we mostly talked aboui learn and we talked about the court mostly. I think we talked about my ideas about constitutional interpretation, statutory interpretation, how to do law, how to be a good judge, but i remember a lot of it talking about my sg experience and the arguments that i have made ny and made them and what i thought of the court after having watched them for a number of months. So that was interview and i did not get the job the next time around and president obama call me as another disappointment, another highclass disappointment. But the president called me and said he was giving it to the other justice who had been a fabulous judge for many years and is now a colleague of mine but he sort of said, maybe there will be another chance and he was incredibly gracious and lovely even as he turned me down. And then the next time i interviewed with him was a year later when John Paul Stevens retired and it was a crazy day at the white house, this is why i say the second was not as good as the first, i walked in at the date of the oil spill. In the present had other things on his mind then to interview me and i wanted and sat down and it was pretty late because he was ha m real emergency and finally he made a little bit of time in his schedule to see me and he said i know you, we were dont really have to do this do we . I know there were bigger fish to fry that day but anyway that ended up working out pretty well and he called me a few weeks later and this time he offered me the job and he remembered this is a far better conversation than the last. When you go to see the senators as you do when you get nominated and you have to try to see 100 as a courtesy matter. They profess to care a lot about things like abortion and guns and stuff. So when you going do they say okay what we do about the second moment or abortions, do they just go and ask you how you will rule or is that not how do they get at that indirectly if they dont ask it directly . A few will do that. They dont really get anything because there is rules where youre just not going to tell them how youre going to decide the case that they really want to know. They figure out ways to ask about a subject that they care about maybe not quite so direct. You mentioned guns, i would think any subject and that would be the greatest number that i get asked about more than abortion, religion or any member of hot button issues, those republicans and democrats that have an important second moment decision who are pretty recent, mcdonalds had been the year before and many senators have constituent who care very much and my resume does not scream [laughter] east side of new york or westside. Exactly. So heres what a lot of them did. They going with these cases and they want to know do you understand this issue, have you ever hunted. [laughter] no does anybody in your family have . No. Do you know anybody who hunts no, have you ever seen a gun. [laughter] it was pretty pathetic at all these questions. And there was pretty bad being so quite pathetic. It is proper that the senator should ask about them. They do ask constituents to caring deeply about this issue and want to know that a judge is going to understand their concerns however, the judge rules. So i am sitting there one day with the senator from idaho i was his name but theres only two if you know. In the other ranch and hes a great hunter himself and he was asking me these questions and how important this was to many of the people who lived there and could he tell them anything about my understanding and i said to him, it was late in the day and i said you know i have not had the opportunity to have these experiences, this is not what we did on the west side of men on, but i understand why youre asking me about this and if you would like to take me hunting id be really happy to go. That is pretty good. [laughter] this book went over his face in the white house aide who is accompanied was holding her head in her hands and it probably took a little too far so i tried to really back and i said i didnt really mean to invite myself im just kidding with you but ill make you promise if im lucky enough to be confirmed all asked Justice Scalia whom i got to know through various things and all asked Justice Scalia to take me hunting. When i got on the court i told the story to Justice Scalia and he thought it was hilarious for when he took me too his gun club and taught me how to shoot and gun safety the inJustice Scalia and i would go hunting two or three times a year until he di died. Birds or dear. Almost all birds, quail and pheasant. Once we went to wyoming to shoot deer and antelope and we each shot a deer but neither sean and antelope and once we went down to mississippi for duckhunting. But it was mostly birds. So the process of confirmation. They did not expect me too have hunting stories did you. [laughter] i actually liked it, i wouldve kept going back. He wouldnt mind it if i said tried that once, i took care of that promise. Is there some amount of drinking that goes on . No these are very serious and yet to be very serious about gun safety. Only after words. [laughter] this process of confirmation has gotten a little politicized and polarized, do you see how we can back out of that, one confirmation, one polarized confirmation leads to another and its like hatfield and mccoys at this point and by the time you were nominated, there were 37 senators who voted against you and it seems extraordinary. Why do you know that and i dont know that. I looked it up. [laughter] it seems crazy and i have a sense that maybe you thought you were going to be too liberal but i think at this point what makes it worse its what they wouldve called on capitol hill, a cheapo, its easy for a republican to vote against you and they know you get confirmed so they get the best of both worlds, you get confirmed and they get to see they voted against you. How do we back out of that because that sets the whole thing up in a polarized partisan way and im sure ive heard you say and its really not good for the court legitimacy. Is there anyway to undo that . I dont know and im certainly not in a position to be able to wave a magic wand into it. There is a lot of history in order under the dam and everybody feels victimized by everybody else. But i will say its wrong to stop it. I think everybody on the court feels this way, there was time not so long ago when Justice Scalia got confirmed by 98 vote when Justice Ginsburg got confirmed by similar margin which i think was 97 1 and Justice Breyer the same, a relatively new phenomenon and it is now thoroughly bipartisan in the bad way, republicans for the most part did not vote for me, democrat or for judge garland. Democrats did not vote for Justice Alito or gore church or Justice Kavanaugh and it has gone to a bad place. It puts and makes the court seen political in a way i dont believe the court is political and somehow people have to get back to where they were. Most people here are undergraduates and theyre probably not all familiar with the process so i like to ask you stepbystep to go through. The first step for a case is a Supreme Court has to decide to take it, they get 6000 petitions and choose roughly about 88 year, my first question, do you read all 6000 of those petitions. Not really. Do the clerks read it for you or do the clerks from the Different Chamber share it and summarize it in you all get to read the same summaries as a whole works . Most of the judges, seven of us are in the pool in what happens all those thousands of petitions get debated up in one clerk will get a petition in each petition is read front to back at the very least by one person in the clerk will write up a memo, this is what happens in a couple of justices who do it outside and they will do it differently but the write up a memo and in my chambers, that also goes to one of my clerks and my clerk will take a look at the memo and what am i to get and say i agree with this or will say i do not agree with this for the following reasons in the justices if these memos for every case and i will read the ones that i think are serious. You read the petition itself. Yeah if i think there is enough i think its the kind of thing that i might want to ask the reddithe rest of the confero discuss or another member of the court to be discussed and its something called putting in the petition on the discuss list. From those thousands and thousands of cases, i would Say Something to get a few hundred get put on the discuss list each year and those of the ones that you read. When you get to the conference where you decide you go through it and raise your hand and if theres enough people do not sit, or do you actually discuss it . The petition varies but i would say theres a bea for discussion on most of us in the chief justice will always start whether we talk about petitions or the cases being argued perforce, the chief justice always start and says how he is going to vote on something and then it goes around to the table and sonority order, on the server petitions is a little bit different because the person who put it on the discuss list which is the chief justice will start and sometimes if i put something on the list i will start the conversation and then will go to the chief justice and around the table and that the world nobody can talk went, nobody can talk twice before everybody has talked once, its a good rule especially if your junior justice. Because it takes a while and its better again after each one of us have spoken, then we often engage in more backandforth and try to figure out whether its a case we should take, so similarly. What is the criteria for taking a case . A big criterion is just whether different courts in the country have divided on an issue. Sometimes you look at the Supreme Court docket and you think its not all that important, why do they take this case. And by itself maybe the issue is not important but one of the principles of our legal system is when it comes to federal law, this is different for state or local law but when it comes to federal law, everybody should have the same law apply to them. And if you do not want a situation where there is some court in one part of the country that interprets or implies federal law different ways from the court in another part of the country into different people are being subject to different kinds of federal law based on where they live. So the court solves those divisions. We take it because theres a split in the circuit in the u. S. Court of appeals and the law of what the court does is does that, they make sure theres uniformity in the way the federal laws interpret in the way the federal laws apply. There are also cases that we take because they are important. Anytime a lower Court Invalidates a federal statue on constitutional grounds, we take the case because we think if there is something that congress has done that is getting invalidated by a court it should be us, it should be the top court. And sometimes will take cases just because we know were going to have to deal with them at some point, its a kind of case that affects too many people for the Supreme Court not to resolve the question about it. And so we will do it. You ever not take a case because its too hot to handle politically . Not in that sense, i think there are times there are reasons for saying lets not take this now, we have just handled several cases on the same subject, we should see how that plays out but i dont think very often theres times where its like oh my god were scared of doing this. Its a legal question that we should resolve, then we do it. Sometimes theres groups of justices that want to revisit an earlier president and maybe change it a little bit and looking for an opportunity to take the case, do you defer to them saying that they want to take it and will talk about it or if you dont think the outcome is going to be to your liking, do you say i think all vote against this . I dont think theres a lot of difference in general, i think each make her own independent decisions about what cases we should take and how we should decide then. Certainly if there is a case where somebody says i want to go back and overrule something, there are lots of good reasons not to do that. And you might think it might be what he wants to do but not what i want to do. So however, you think itll come out, that would be a reason. You get to this thing called oral arguments, before oral arguments, you in your clerks read all the filings in the case it could be many filings and you dont read all those do you . At least one of my colleagues does, i tend i asked my clerks, whichever clerk is in, that person has to read every single brief and this can be an incredible number, on big hot cases it can be upwards of 50. And the clerk will say to me, these are the few that i think you should read the actually Say Something different from what the parties have said. You have to carry these papers around all the time, going home, there are a lot there very heavy. We sort of have technology no. [laughter] i tend to like reading them in paper and marking them up so then i do have to carry them. But some of my colleagues read them on their. To have a meeting with your clerks before the oral argument in hashing through and figure out how you will vote on the case before the oral argument . We definitely talk it through, sometimes ill come out with a pretty good view of world, but sometimes not, it depends on the case but one of the most fun parts on the job and i hope for my clerks, we sit around the five of us for each case and go through the arguments and they like them to disagree with each other and if they all agree then it makes poopy double of kent myself or sometimes i sign double advocate, and make it clear that im unhappy with all the agreement. [laughter] because i like hearing different arguments and tried to figure out which of the ones that sound best. Then you come into oral argument, youre all lined up in these lawyers prepare extensively for this and they get three sentences. And already somebody is jumping on it, usually asking questions not about anything they said in the three sentences. There is a little bit change. We now give people to minutes of uninterrupted time which feels like a lot actually. Because literally this would have been were being very charitable and we give you three sentences in my first argument is the sg. You first argument on any Appeals Court is that correct . That is correct. It was an important case in the reargument of Citizens United in a new that was a pretty important case. And i got one sentence out and then i was very nervous, the first argument and it is very nervous and they got one sentence and Justice School leah leaned over the bench in a way that he had and he said wait, wait, wait and then he told me the one sentence i had managed to utter which seemed pretty anodyne and not very consequential was completely wrong. [laughter] but it was kinda great, i actually did not mind about all i kinda preferred it and this year ive been watching these people try to fill up two minutes of time without being interrupted and thinking we should do them a favor and interrupt them because sometimes it is doing people a favor, it gets you in the game and gives you something to respond to. I know thats what it did for me. When Justice School leah challenged me, then you have to go back at him. The peoples minds get changed by th oral argument . It depends on the case some people have pretty strong tires and no how they feel about a particular subject in part because they seem similar cases on the same subject and many times before so they developed a way of thinking of an area of the law and youre not going to get them off that way by having a good half hour at the podium but there are lots of cases that we do but that is not the case where people are coming fresh and people are really engaged by the argument, people are trying to figure out how to think through a case, a large part of what we do it arguments is talk with each other, theres the lawyer and sometimes the lawyer says things that make you think about a case in a different way but sometimes your colleagues say things that make you think about the case in a different way and a big part of what we do is basically have our first conversation together about a case which we dont meet about cases before arguments so it really is our first opportunity in the next time we were in conference and were voting on cases and we will really start to vote. Because that is the way our deliberations are structured, the argument time becomes crucial for judges to talk to other judges and to say this is the way and thinking through a case. And to put that and everybody elses head to think about in the next couple of days before we meet. And a few days later that you meet in conference. You go around the room as you describe in everyone is a one minute pitch . It varies, sometimes in short, sometimes as long it depends what the cases had and how complicated. It depends if other justices have said things before you. Then you respond to them. If you agree with them then you say i agree what next whitens he said. You dont have to hear it again for me. But often you respond to them, i want to make three points but i also want to respond to a bunch of other things. Does the discussion every change anyones vote . For sure. And again, it depends on the case but not infrequently, somebody said i came in thinking this but something that another just to said is making me rethink and im open to think about it and open to being persuaded. I remember people would say literally you go around the table and somebody would argue spoken with say im changing my mind. And if somebody changed her mind because of something that i said i would come that is a pretty good day. But i think every justice has done the us some point or another. So then theres two sides in the sense after you vote that once to do something and the others dont. In the senior justice of each side gets to assign who writes it. Do you ever go up to people ahead of time and say ruth, i really like to write this one, do people do that . I do not do that. I just take what people give me and i think that is kind of the role of the junior justice and i think maybe as you get a little bit more senior you feel as though youve paid your dues and maybe you ask for a case or two. Was the criteria that the senior justice will use and how to assign it. Like we want to spend the work around or something you know a lot about or the reason that someone gets assigned a case. Ive never been in the assigning justice. Probably assigning justices to think about the question different. The chief justice is the assigning justice but not always sometimes it could be it could be thomas or ginsberg or schoole scalia. But we dont have different subject areas its not like this Justice Alito specializes in this area. We dont do that, we all right about everything, it is sometimes a comic interprocess, you have heard ten or 12 cases and people are all over the map and you have to figure out the everybody by the end of the year and even each person gets a number of assignments and you have to figure out how do you parcel out all these cases given people are on different sides. Sometimes its pretty complicated. So you get assigned to write an opinion, do you and your case, take the first cut at writing the first draft or the clerks do the first draft . Or split it up say ill do the first you do the facts and altogether analysis . How do you divide the work . My clerks to the first draft and i put on her computer screen and opened up a new page on another computer screen and i start writing. I use the draft as a launching pad and i use it as a collection of good ideas, a collection of citations, but i write from start to finish my own draft and i do that because that is the only way i can think through case even if i have a very good draft and if im editing. There is no way that i understand the case as well if i just write through by myself. I do that because i want every opinion to sound like me and i have lots of great clerks and writers but they sound like themselves not like me. I want every opinion to sound the same. So i do that, and then i give it back to the clerk who originally gaming the draft and that clerk will edit it and go through a round of edits and ill give it to my other clerks and will go through a round of edits. Pretty serious edit. Before you sick late to the other people on your side or does it circulate to everybody. Yes before i circulate at all. And then went to circulate to the other judges, do they send you memos back, do they call you on the phone or come by the office and say that fourth paragraph, i cannot live without sometimes they love every word and usually were memo writers, sometimes we talk and sometimes to get on the phone or go to somebodys office but for the most part the rule is if i have something to say to another justice it should be said in the way the every other justice on the court can also see. So there is a transparency in writing memos rather than having a private conversation. Some private conversations are ahead is not like theres a strict rule, the most part we write memos saying i dont like this part of the opinion, can you change that part, could you knockout this, and that and a lot of that goes on. You wait to read to the majority or do you start right off . I almost always wait. So then you announce your decision at the beginning of a session and sometimes we read from the bench when you think how do you decide which of your opinions that youre going to read from the bench . Ive only done it three times in nine years and i think thats pretty typical. Most judges go through a year and never do it. Sometimes you would do it in the defense if its really great important to the law or the country. So ive done it three times, one was my first year in a campaignfinance case which is a statute out in arizona that the courts drop down as being a violation of the First Amendment, a Public Financing scheme that i thought was appropriate and consistent with the First Amendment. The second time i did a couple of years ago on a case which dealt with the way by which employees contributed to labor unions even if they were not members of those unions and they were a violation of those employees free speech rights, i thought they were not and i thought it was a case in which the court overruled a very wellestablished precedent and i thought unjustifiably so so i read from the bench on that. And last year i read from the bench a gerrymandering case where the court decided that courts cannot get involved in revealing even the most extreme gerrymander places where you could vote 51 republican and the republicans would end up two of the 11 seats or ditto for democrats. And the court said it did not have the tools to invalidate those schemes even though it was by the court on a mission depriving people of an equal right to vote. And i thought that was a bad decision and i read from the bench on that one. The criteria is when you think the majority is particularly there is a sense where you think the opinion is wrong but there are two ways of seeing something and sometimes it makes it more important to decide something and decided right and you think you ought to defend in order so the party knows it was not a slamdunk decision there were two ways of thinking of the case but after the case is over you dont think about it anymore. He said thats what the court decided and go about your business. I think there are some defense and not even one year. As you can see i had three and nine years where you think there is something that has gone badly wrong and where you think that its a decision of real moment to the American People. And who were you talking to, partly youre saying to the American Public, i think that something has gone badly wrong and sometimes the American Public can actually do something about it. When you think about the gerrymandering case within months, there were state courts the decided to invalidate extreme gerrymanders. There are people all over the country who are trying to put into place election systems that are not subject to gerrymanders. Sometimes there are people who can actually change matters on the ground and sometimes writing history and the First Amendment cases that i talked about at the beginning of this homes really set the foundations of First Amendment law in our country so 100 years later we still believe what they told us about the importance of Free Expression in america, both cases started in defense and it was not until decades later they became a seminal track. Is and were fun to write this . Yes and no. Its not good to lose and its especially knackered to lose if you think its a matter of significance but yes, as a writein, yes and a lot more fun to read. And that the people writing gets more vivid, colorful, more personality and separate opinions then there can be when youre writing for an institution, the Supreme Court says as opposed to the Supreme Court said this, and let me tell you why its completely wrong. I wrote a forward for a book coming out i talked about Justice Scalia and george basin with this scalia law school, i wrote forward for a book with Justice Scalia opinion in it. And what is so interesting, i looked at the table of contents and basically about 90 of them are separate writings, the defense or occurrences. I think its because you can b freer and say heres how i think a law should work without worrying if youre going to get five votes for that or worrying how an institution or the Supreme Court would say. Or the president ial value of every word. Right its just you. It would not be the first person to point out youre a fabulous writer, i would say are good enough to be a journalist. [laughter] but im going to read from that some people have a sense of it. This is the first two paragraphs, for the First Time Ever District Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. Not just any constitutional violation, the partisan gerrymanders in this case deprive citizens of the most fundamental constitutional rights, the rights to produce pain equally in the political process to join with others to advance political beliefs and to choose political representatives. In doing the partisan gerrymanders dho american ideal governmental power ders enabled politicians to entrench themselves in office as against Voter Preferences and voter partnership to respect the will and polarization dysfunction if left unchecked gerrymander like the ones here irreparably damage our system of government. That is pretty good. [applause] i just explained that case and i do not really talk like that did i . You do it better in print. [laughter] then you get real cheeky a few paragraphs on, there was an issue. Was that a snarky. Anyway one of the issues the court said we gotta allow a certain degree of partisanship this is a redistricting. And when it some partisanship too much, how much is too much and you write the majority how much is too neutrality argument, how about the following for a first cut answer. This much is too much. Which i thought it was. And it was only the first cut answer, there were many more answers but you looked at that and said this much is too much. Wherever we draw the line, this is on one side. One more area. To hold you and check. They say too much. Im afraid that the case. [laughter] i want to talk about diversity, there is a tremendous diversity on the Supreme Court, for from harvard law, for from Yale Law School and one from columbia. So this question comes from shane crow, a student here, someone who went to princeton, oxford and harvard you know an elite education. Recently weve seen the link to which parents will go to get the children in elite education. What ideas do you have to open up to judiciary to those without the elite pedigree. I do think its unfortunate that the court is right now represented by only two or three law schools. I dont quite know why it is, some part is just spooky. And these seats come open one at a time and there are only so many dimensions of diversity you can think about and along with the get about Everything Else you want to take about in nominating, im not sure any of us got it because we went to the schools, although for sure these schools do give opportunities to their students. You could argue this is a perfect hypocrisy in working. That is true there are great law students all over the place and great lawyers that come from all over the place and i do think this is a bit fluky as you look at the judiciary as a whole even the Circuit Court level, i think you would not find anything like this and i think its a bit unfortunate or more than a bit as i said. I go to lots of law schools and it doesnt surprise me that you just read that question because they go to lots of law schools and one of the first questions would be, im not a student, doesnt mean on never get to be a Supreme Court justice. The answer is no and certainly in a good world the answer would be no. Natalie pixler another student asked this question. What advice would you give to a young woman in a male dominated field like the law and in particular one who wants to become a judge. Go for it. I would say if this is a law student no it is not. In undergraduate. That is a great ambition and work hard and dont get outworked by a lot of men. I used to teach law school, i used to find that some of the women did not volunteer as much as the men, maybe because it could be that men talk when they dont really know all that much. [laughter] but i used to say to the women, get in there. Because part of learning law is learning the language in learning how to talk law and be assertive and be bold and youre as good as anybody and go be a judge. Do you think law is maledominated or do you think you broken the back of that . I think were in a better place than we used to be and you can see this on the court, they have been for women justices into were of one generation into another. Justice oconnor and Justice Ginsburg were the real pioneers and when they got out of law school, nobody would hire them, a law firm would not touch them they cannot get clerkship drops, they sort of had to construct careers out of nothing because nobody wanted them at the time. In 25 years later was around the time were justice and i got out of law school and of that point, 40 of the Law School Class was woman and now its over 50 and you could get all the same jobs whether to be a clerk, firm but there was still the main obstacle for women in law these days, women are still often the people who look after children, not always but often in constructing a career where you can do all the highpowered legal things and also have the time you want to have family, i think its a great challenge and why even now law firms dont have enough women partners and if you look at the ceo rings of businesses youll find lots of men who were law School Trained but not many women who were. That has got to change. We are almost out of time, im going to ask you two final questions. Make them good. They are easy. The worst part in the best part of the job . The best part of the job, ill switch the answer, the best part this is an amazing job, i love thinking about law and to be in a position where you can think about the interesting legal questions of the time and also be able to advance the rule of law, president talked about the importance of the rules of law and to do justice is an amazing privilege and honor and if you do not appreciate the everyday that is the best part of the job to be able to make a difference and also to think about these fascinating legal questions. The worst part of the job is when it does not go your way. The worst part of the job is when you lose some of the cases that you think are really important and you really think the court has just made a difference and not a good difference. And sometimes i come back from conference and i want to read him my fist through a wall. But i think we all feel that at times every single one of us and you have to understand youre not going to win them all were nine people with different views of the law and sometimes my views will prevail and sometimes they will not but i think thats probably the worst part of the job. Do you despair i hate to say this that your side will be losing more in the coming years before you have a chance to win more, are you despairing of the direction of the court . I do not despair of the court. I think the court is a Great Institution and i think i have unbelievable amount of respect for my colleagues and i think even when i lose, i know everybody on the court is operating in good faith and trying to do the best that they can and handling really hard legal questions. But i also dont despair is not just i going to lose all the time, maybe i will and maybe i wont. I think nobody knows what the next case brings let alone what the next year brings where the next decade brings. And i think if you look at the court in the institution over time, the court has done very well by the American People and i have a lot of faith in the institution and the people who make it up and im convinced it will continue to do so. Lets think Justice Kagan for being with us. [applause] thank you. Thank you can i ask you to stay seated for a while. [applause] [inaudible conversations] [applause]. Good