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

Elena kagan speaks about the american legal system, her life and career and the polarization of the confirmation process for Supreme Court justices. From George Mason University earlier this month this portion is just over an hour. Students guests, president helton, Justice Kagan, friends and family of Roger Wilkins. It is my pleasure to welcome you all to the Second Annual Roger Wilkins lecture. Which this year takes the form of a conversation of Supreme Court justice elina kagan. My name is matt shearer im associate professor of policy and government in this our school and director of the undergraduate program and philosophy and politics and economics the eb for short at george mason. The program is honored to be theinstitutional sponsor and host of the Roger Wilkins lecture. We are grateful for the trust and support place in us by the university andby the friends and family of Roger Wilkins. Whats the connection between our pbe program and these lectures . Im glad you asked. I spent a fair amount of time explaining what pbe is and what makes Masons Program unique. I can go onbut today im going to go straight to the ttbottom line. Our program exists to serve highly motivated to who want to help create Better Solutions for the difficult and pressing problems arise in the public life of a complex society. The problems that arise in different emsit in what Roger Wilkins in the first chapter of his autobiography calls with immense understatement obligated times such as our own today. It offers a foundation for students to build meaningful careers in civil service, journalism, business and the law and other socially engaged fields of endeavor. In this regard its my hope that generations of student will set their sights on the example set by Roger Wilkins. We couldnt be prouder of our association of this legacy. I have three brief Program Notes to make before turning over the podium. The first is youre going to be able to find an archive of this event as well as past lectures in the future wilkins lectures and more information about our program and our website is ppe. Gmu. Edu. During the event dont take pictures or videos out of consideration for those around you and on the state. Third and final note, at the conclusion of the event im going to ask you to hold your seats and allow Justice Kagan to leave first and we will follow after area without further ado its my pleasure to introduce the president of George Mason University, president and holden. [applause] thank you professor sheridan. Its a delight to see you all here today but you to join me in extending a warm welcome to Justice Kagan area Justice Kagan, we are thrilled to have you here to this bastion of access to excellent. Were proud of george mason and one of the things were proud of is that we can offer our students opportunities like this to hear from you. We are here for the Second Annual roger dwilkins lecture. We like to think that Roger Wilkins had a lot of Important Roles in his life, but we like to think is most Important Role was is 19 years of service here at George Mason University. Mentoring and fostering the growth of young minds and lives as a robinson professor of American History and culture. Robinson Professor Program is one that others are most distinguished professors and i believe we have another of robinson professors in theroom , if you could give us a way, thank you for beinghere. He did do a few other things in his life. He was the first africanamerican in a leadership role at the department of justice in the 1960s. Where he helped president kennedy and thenpresident johnson asked the amazing important of that era. He was the Washington Post and then in New York Times and editorial roles Washington Post during the watergate era and wrote some of the important editorials been were shared in the Pulitzer Prize most is the one for that work. Were excited to honor him today through this continuing lecture series and we are so excited to have Justice Kagan herewith us today. She and i have a number of things in common you may not know. We shared our undergraduate and graduate liners for princeton undergrads and she wrote the daily prince tony roin which i read. At harvard she was on the long review which i didnt read. And then we went on to have a significant overlap in our professional lives as well area i was a judge on the juvenile and domestic jrelations District Court for the city of richmond, literally the baby court in every way and she as you know is a justice on the highest court in the land. Even though those ports are quite different, there are some significant overlap and they are both all about the rule of. And the judges get all excited about the rule of law and not everybody quite understands that all the time but the fundamental part, the fundamental essence of the rule of law is the principle that all, that the rules apply equally to everybody so is fundamentally about the quality and when you travel in other countries as ive had occasion to do where the rule of law doesnt apply, where courts, where there isnt an independent functioning judiciary area where people are in certain parties or groups dont have to ycomply with the rules that others have to comply with. You remember what this, what the importance of this thing that we take for granted in our system, the rule of law. One of the consequences of having an judiciary system as we do is that judges cant always, they cant speak freely to defend their positions and they sometimes have to take unpopular positions because the rule of law so dictates. And yet i can only speak through their opinions. Therefore it makes it extra special to have an opportunity to hear from Justice Kagan here in an academic setting we can hear le more about how the whole system works so im very, very excited to hear her conversation today area before i turn the mic over want to knowledge we have professor wilkins wife patricia here with us who is retired i believe from her role as professor at Georgetown Law School and has served in olany, many other Important Roles as well. His daughter amy is with us. Also a great advocate, especially an advocate for children and families in all kinds of important opportunities and most especially im delighted we are near, we have a chance to welcome his daughter elizabeth who will be following me onstage in just a minute area elizabeth is the senior counsel to the dc attorney general carl racine. She is a yale or we will forgive her undergrad and law grad but most important way your today she had an opportunity to clerk for Merrick Garland on the dc court of appeals and then for Justice Kagan at the courts and for those of you who have any inkling of that, law clerk judge relationship is a very important one. Partly because judges are so isolated. Your clerks are your family, they are your window into the world and i know that elizabeth is thrilled to be here with Justice Kagan and vice versa and with that ill hand off to Elizabeth Wilkins area. [applause] good afternoon. Thank you president or that introduction. It is a real 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 who have gdedicated their careers to public service. Above all else are dad talk to us to his students and really to anyone that would listen or read that we each have a fundamental civic duty rmake our country better. He brought all of his considerable talents ugand intellectual firepower to bear on ager questions of justice in his lifetime area using ever position or power he had in the service of those who had less. He did that most elegantly with his 10, writing time and again pauls arms against the evils he saw around him. Justice kagan in her term spent a career putting her enormous talents to work in nterms 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 noted that administration. R the obama my time when i was not much older and many of thepeople in this room. And she asked me one with a question about the experience. What was the most important thing that you did for your country . To be clear i was like 24 at the time i was working in the Obama Administration so i felt overwhelmed by trying to answer this question but that Justice Kagan. She has high expectations. There are in her court no wallflowers, no waiting around. Better be showing up and getting things done no matter what your position is that certainly has been estes kagans and overlap her career. Born and raised your Justice Kagan attended princeton, oxford and harvard law before starting her career as a law clerk to judgment that on the dc circuit and then you Justice Thurgood marshall. She stopped briefly aloft before moving back to as a professor of the university of chicago. She then was asked to come into the Clinton Administration for its associate white House Counsel and as a domestic policy advisor and went back to harvard law as a professor but became dean where shes widely credited for crucial institutional reforms. President obama appointed Justice Kagan be the first solicitor general of the United States and quickly followed up pointing her to the Supreme Court. Do less well known but nevertheless are important achievements, Justice Kagan was the dean will brought three coffee to harvard law and was also the justice frozen yogurt to the Supreme Court which i appreciated very much. Urin all seriousness, i was extremely fortunate to have aclerk for a person like Justice Kagan. Our father taught me how to be passionatelydedicated to service , Justice Kagans chambers taught me the diligence, tenacity and commitment to excellence necessary to get your absolute all area i will not soon forget work before 5 am when the moon was still high when working on an opinion i also will never forget what it means to take your responsibility so seriously, to turn over every stone and pursue every line until you are sure you have gotten things right. Like our dad Justice Kagan is known for the power of her pen and watching her wrestle every sentence, every word into place to construct the most succinct argument possible was astounding to see. Her commitment to writing accessible, forceful and exceedingly well reasoned opinions for the parties in the case and the court and the development of our lives is unparalleled and we areall lucky to have her. This afternoon Justice Kagan will be in conversation with steve perlstein, the driving force behind these lectures honoring our dad. Like my dad he was, he is a robinson professor at george mason and like our dad, he is a semireformed journalist. Originally from massachusetts he started out as a tv reporter and even started his taown political using before coming here towork at the Washington Post. His in his own turn one a pulitzer for his reporting onthe financial crisis. Before starting at gm you are his dedication tostudents and the institution and to learning is evident and i look forward to a great conversation. Thank you. [applause] good afternoon. I dont know whether any of you saw this but elizabeth has bright red shoes. Next year im going towear my red shoes. Thank you all for being here and thanks to you Justice Kagan. Its an honor, it reallyis an honor. First off i do everything that elizabeth asks me to do or tells me to do, but this one was a really special and treat us because i never had the opportunity to meet Roger Wilkins. S. I feel as though i know him some through his daughter and his wife. And he was just such a super educator and journalist and lawyer and most of all Public Servant and its great to see you carry on his legacy, elizabeth and its great to be here for this. So there are a lot of undergraduates here, theres some law students here. This is a very diverse campus. People from all sorts of countries, all walks of life but they all have one thingin common. They are all ate massive anxiety about their careers. Chillout. So lets talk about careers, particularly yours. Harvard law school, to clerkships, law professor, white house aide. Solicitor general. Was there a grand plan mark if you plan thing . It was all written down. Thats a joke area. When you were in high school appeared in your High School Yearbook wearing a gown and holding a gap gavel, was that just coincidence but mark. It was a coincidence area a bunch of us and rated the costume was at the Drama Department and thats how i ended up but i have no idea i was going even to go to law school before basically the year before i went to law school. And i guess my view of the way things have turned out is that most of it was stserendipity. And unplanned. And people at this age, law students , they can plan too much and the best advice you can give people is you know, timing is good and important but its really just to keep you guys open to opportunities that just might pop up. Because i think most of life happens that way you just things balance that you never nwouldve expected and the only thing you have to know how to do is how to grab those opportunities when they arrive. And figure out the good one from the not so good ones. You had some setbacks at one point, you were nominated to the dc circuit by president clinton and as sometimes happens you didnt really get a hearing or a vote. One point you were a candidate for president of harvard. Tell us about how those disappointments, if you have got those jobs you might not be sitting heretoday. So how should we think about this . Those are high classes to a point. [laughter] also had some less highclass appointments area the funny thing about somebody like both in a resume and it has all these jobs on it and it doesnt have all the jobs you didnt get right so there were plenty of jobs i didnt schedule on the way that i fall i wanted i think what i can to discover and the example that you gave about my dc circuit judge its a pretty good example of that is that when the door closes someplace, a window open and that might be magical thinking but it happened to me often enough that i believe it and sometimes are really the things that ever happened or could ever have you that was example of the judgeship. I was nominated for the i was 39 so i would have been very young and i would have really my entire life on the court and i love the work i do. But when i look back on it, i think you know, he said i had a decade where i did many other things where i developed what the different sorts of skill. I am a judge so i get that you read so it was really good thing i think happened that i had an opportunity to explore something i never would have had the chance to. Come about and the way i thought i wanted to. And you convince yourself of that time is it hard to convince her so . Its hard time if something happens, and it worked out all right area i think it was, i went back to teach and i love teaching. Ive always loved it. And then just a few years after that, i had the opportunity to become the of harvard and i learned so much in that role. I learned howto do so many things. I never would have, but i never, it requires you to be a person that i didnt really expect myself to be. And to develop all kinds of different skills and it was really a very steep learning curve which is the job that i like are the jobs that require youto learn all kinds of new things. And so it was a great decade that before i got to where i am now. Talk about the law. What did you learn about the law and about judging from Justice Marshall and i should say that you are one of Justice Marshalls last looks Roger Wilkins was one of i think his first job out of law school was working for Thurgood Marshall before he was a justice. He was at the Legal Defense fund so the line goes from roger to, from marshall to roger toyou too elizabeth. And i hope beyond. So what did you learn from Justice Marshall about the law and about judging mark. Mostly what you learn from Justice Marshall was how people eacan advance justice. And i dont think anybodys ever done so much of it. As he has. I view him as the greatest lawyer of the 20th century. In part because he did the most justice in his time. And in part because he was just a great lawyer. He was miraculously skilled in all kinds of different things. You dont see lawyers like this anymore. People who were great trial lawyers, people who were great appellate lawyersaw. In criminal cases, civil cases. He did, 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 he was fighting to defend somebody and a lot of the cases he did were Death Penalty cases in front of allwhite juries and it was hard to win cases. And in everything he did whether its a case for the brown versus board, developing that kind of strategy and whether it was the fall cases, making sure individual defendants, not so small individual defendants got the justice they deserved. Everything he did was all about bringing justice to this country and in particular to the Africanamerican Community but to the whole country. He was a great storyteller and he told stories about his life. You said i clerked for him and in one of his last years and i think by that point he was not in the best of health. I think he knew he didnt have all that much time left and he would look back sometimes on his life and we would go into his chambers and do all the usual things that clerks and judges do and we would talk about the cases and then at some point he would segue into storytelling mode. We would hear about many cases and you never repeated a story and he had hundreds of them. It was a lesson o in American History and a lesson in american law and it was a lesson most of all in how one person can do justice. Nobody is ever going to be Thurgood Marshall. I will never be Thurgood Marshall and no onen in his room e. Ll ever be Thurgood Marshall but still you can take away lessons about your own life and about what makes something worthwhile and about the kind of goals you want to set for yourself and the kind of good that people can do. Anything about judging or being a justice that you learned from him thatt perhaps now you can see more clearly now that you are one . There are different times and we are different people and i would never say that im the same kind of judge as he was but its different times, different circumstances and different as the malady but i suppose one thing that i appreciated at the time was the way he treated his clerks. He was a taskmaster, too. I say to because you can tell from elizabeths conversation that i am kind of one. [laughter] but he really you know, he never did not know who was boss in that chamber. Hed couple of sayings that made your member that. One was sometimes he would say to him you have to do this and in this funny six yearold way and you have to vote this way or join this opinion or Something Like that and he would say there are only two things that i have to do. Stay black and die. [laughter] which shuts you up. And sometimes he would Say Something and he would say do you see that commission over there and it was the commission swhere with Lyndon Johnson makg him a Supreme Court justice and he would literally make us get out of the chair and walk over to that commission and repeat which name was on that commission. [laughter] but at the same time he really respected his clerks and he thought we were people who were going to do great things and the interaction that he had with all of us is something i think none of us will ever forget. I dont have the stories that he has and nobody should treat me the way people treated Thurgood Marshall but id like to think of that when i talked to my own clerks Spivak Marshall is there some justice that in history that is not on the court today that is your model if it is not marshall and if so, why . I think Louis Brandeis is the person i would pick for that. I sit in the same chair as Louis Brandeis. On the diocese . We all change tears as we get more senior but the court has this tradition where you know who sat in each chair and it depends on who replaced whom so for my seat it is me and then the justice i replaced who was john stevens, absolutely superb judge and man who unfortunately passed away last year but at the age of 99. A unbelievable life. And then prior to john stevens was William Douglas who also served the court for many, many years. I call it the longevity chair because everybody seems to be on the court for 30 plus years and then three justices back is Justice Brandeis whoic was nominated to the courtei around the time of a little after world war i. He served therefore very sting rushed and noble, i think, way. A was a Brilliant Writer and my favorite opinion of all time was written by him. Which one was that . [crowd boos] an opinion aboutut the First Amendment and why we think of the First Amendment as so important. It is not there were two justices at that time who wrote many about the First Amendment and one was a Justice Brandeis and justice holmes. Justice holmes had some of the language that we know about today, the marketplace of ideas and he will his was a commercially oriented almost understanding of how the first moment operated and that ideas were in this marketplace and you know, whatever prevailed in the market ought to prevail. But Justice Brandeis had a much more poetic understanding of the value of free speech. I think the opinion for everybody to read if you go home and want to read a judicial opinion is a concurring opinion in a case called whitney. It talks about the First Amendment as connected to a Democratic Society and what the First Amendment does for a free People Living in a democracy and its very beautiful so its the kind of thing that makes you cry. Its also in appeals, i think, to americans highest values and that is what Justice Brandeis pretty much did all the time pretty he had a very deep and understanding of American History and he knew a lot about the founding but knew a lot about the whole sweep of American History and he brought that knowledge to bear in his understanding of the country and the law and of the kind of law the country deserves. He was very much i a policy reformer in massachusetts. He was before he became a judge. He was not always although law was always involved in some ways. I want to ask you about the interview process. You interviewed with president obama twice. The second time was better. [laughter] the second time was not better but its not true. Really, thats how the one that left the impression and left a good impression and that is why you are here. What did the president ask you . What are they looking to find out when you have these conversations . You talk about whether or what do you talk about . We chat for a bit and then i did have these two interviews and one was the vacancy where my colleague, just a sotomayor got the job and i had just started as a solicitor general for maybe three months and all of a sudden there was a vacancy because justice left and i was put on the short list and the president may be interviewed for people or Something Like that and then i walked in and maybe we chit chatted a bit but we mostly talked about what he asked me what i had learned since i had become solicitor general we talked about the court mostly. I think we talked about my ideas about constitutional interpretation and statutory interpretation and how to do law and be a good judge but i remember a lot of it we really did talk about my sag experience and the kinds of arguments i made and why i had made them and what i thought of the court after having watched them for a number of months. That was my first interview. Then i did not get the job that time around and president obama called me and its another of these disappointment, highclass disappointment but the president called me and said he wasnt giving this to Justice Sotomayor who had been a fabulous, fabulous judge for many years and is now a really esteemed colleague of mine. But he sorta said maybe there rell be another chance and he was incredibly gracious and lovely and even as he turned me down. Then the next time i interviewed with him, which was a year later, when John Paul Stevens retired. It was a crazy day at the white house. This is why i say the second one was not as good as the first because i walked in and it was the date of the bp oil spill if you remember that day. The president had other things on his mind, i think, then to interview me. I walked in and sat down and it was pre late because he had been dealing and had meetings and there was a real emergency and finally he made time in his schedule to see me and i walked in and he said i know you but we dont really have to do this. Do we . How did that feel . It did not feel that great because i knew there were bigger fish to fry that day but anyways that ended up working out pretty well. He called me a few weeks later and this time he offered me the job and he remembered that he had this was a far better conversation than the last. When you go to see the senators as you do when you get nominated and you try to see, i guess, all 100 as a courtesy matter, you know, they profess to care a lot about things like abortion and guns and stuff. When you go and do say do they say what will you do about secondment or abortion . Do they come right out and ask you how you will rule or is that not how do they get at that indirectly . A few do that but they dont get anythingth because there are these rules. You just not going to tell them how you would decide the case they really want to know. So they figure out ways to ask about a subject they care about yod maybe that are not quite so direct so you mentioned guns. This was i would think that any subject that was the one that most the greatest number asked about more than abortion or religion or any numbers of hot button issues. Both rachel begins in democrats that took the very important secondment decisions and then mcdonald were pretty recent. Mcdonald had just been the year before. And you know, many senators have constituents who care very much about this issue. My resume does not scream like you know. [laughter] east side of new yorkers or west side. Exactly. So, here is what a lot of them did. I know i cant talk to about these cases but i want to know do you understand this issue and have you ever hunted . [laughter]ey no. Do know anybody or any one in your family cant . No. Do know anybody who hunts . No. Seen ake have you ever gun . [laughter]ll i was pretty pathetic at these questions. I was feeling but a bad about being quite so pathetic because first off its totally right and proper that senators should ask about these things. A lot of them do have itnstituents and care deeply about this issue. They want to know a judge is going to at least understand their concerns however the judge rules. H tand im sitting there one dy with a senator and he is a senator from idaho and i wont say his name but there are only two. [laughter] he has a ranch out there and a great hunter himself and he was asking me these questions. It was about hunting and how important this was too many of the people who lived in his state and could he tell them anything about my understanding of this issue . I said to him late in the day feeling punchy and i said a senator, have not had the opportunity to have these experiences and is not what we did on the west side ofe manhattan but i understand why you are asking me about this and if you would like to take me hunting i would be happy to go. That is pretty good. I would say it was a look of abject horror passed over his face so the white house accompanied an he was holding her head in her hands and i realized i went a little too far. I tried to relay back and said senator, i didnt mean to buy myself hunting with you but i will make you a promise that if i am lucky enough to be confirmed i will ask justus glia whom i knew to be an avid hunter and whom i had gotten to know through various things before and i will ask justus glia to take me hunting. When i got on the court i told the story to Justice Scalia who thought it was hilarious and immediately scheduled the date for when he took me to his gun club and told me how to shoot and about gun safety and then justus glia and i would go hunting. Two or three times a year until he died. Birds orr dear . Almost always birds, quail and pheasants. Once we went out to wyoming to shoot deer and antelope and we each shot a deer but neither of us shot and antelope andn once e went down to mississippi for duck hunting. It was mostly birds. This process of confirmatio confirmation did not expect me to have hunting stories did you . [laughter] turned out i quite liked it. Did you . I would not have kept going ldback. He would not have minded if i said i tried that once and you know, i took care of that promise. Is there some amount of drinking that goes along with hunting . No. People are serious about gun safety. Only after words. [laughter] this process of confirmation has gotten, shall we say, a little politicized and polarized. Do you see how we can back out of that . One confirmation and one polarized combination leads to another and another and its like a hatfield and mccoys at this point and by the time you are nominated it was 37 senators who voted against you and that seems extraordinary. Why do you know that and i dont . I looked it up. Oh, okay. I had a sense thatzy few thought i have a funny feeling what even makes it worse is that its what was called a cheap vote. Its easy for republicans to vote against you and they know c if you will get confirmed they get to say how do we back out of that that sets a whole or i polarizing way in a partisan way and im sure you said this to others is not good for the courts legitimacy and is there anyway to undo that . Im not in a position to be able to wave a magic wand and theres a lot of history and water under the dam. Everybody feels victimized by everybody else. I will say that it is long past time and everybody on the court feels this way and there were times not so long ago when justus glia got confirmed by a 90zero vote when Justice Ginsburg got confirmed by a similar margin i which was 97o. Justice breyer the same. This is a relatively new phenomenon. It is now thoroughly bipartisan, you know, in a bad way. Ravel begins for the most part did not vote for me or Justice Sotomayor and or for judge garland. Democrats did not vote for Justice Alito or justice score such or justice kavanaugh. You know, its gotten to a bad place and it makes the court seen political and way i do believe the court is political and somehow people have to get back to where they were. I want to most people here are undergraduates and id like to theyre probably not familiar with the process by which cases are decided. I would like to ask you to stepbystep go through it a bit. The first step or case is the Supreme Court has to decide to take it. It gets 6000 positions petitions and we choose roughly about 80 a year. My first question is do you read all 6000 of those petitions . Well, not really. No. [crowd boos] do the clerks read it for you . Or do the clerks from the different chambers share and summarize and get to read the same summaries . Yes, most of the judges, seven of us, i believe, are in whats called a search pool and what happens is those thousands of petitions divvied up and one clerk will get a petition and each petition is read front to back by at the very least one person. The clerk will write up a memo and this is what happens with a couple justices who do it outside in the clerk will write up a memo and then in my chambers that also goes to one of my clerks and my clerk will eake a look at the memo and will annotate it and will say i agree with this or will say i dont agree with this for the following reasons. And then so the justices get these memos and every case and i will read the ones i think are serious. You read the surreptitious. If it is the kind of thing that i might want to ask the conference to discuss or another member wants to be discussed something called put in a and fm those thousands cap cases i would say Something Like a few hundred get put on the discussed list each eight year and those are the ones. When you get to the conference do decide when you go to ding, ding, ding and raise your hand if theres not people or do discuss it . The petitions vary but i would say theres a fair bit of discussion on most of it and the chief justice will always start. This is the way we do everything whether we talk about petitions or the cases that are being argued before us in the chief justice always starts and says how he is going to build on something and goes around the table in seniority order and its a little different because the person who put it on the discussed list which is often the chief justice will start but sometimes lets say if i put on something on the discussed list i will start the conversation tand then it will go to the chif justice and around the table and theres a rule that nobody t can talk onceor and nobody can talk twice before everybody talks ones and this is a good rule if you have a relatively junior justice anddas because it takesa while and its better if but then after each one of us has spoken then we often engage in more backandforth to try to figure outn what is the kind of case we should take which is are two cases. What is the criteria for taking a case . A good criteria is whether ports in the country have divided is divided on an issue. Sometimes you look at the Supreme Court docket and thinknk its not all that important does maybe its not all that impertinence by itself but one of the principles of our legal system is when it t comes to federal law and this is different for state law or local law for what it comes to federal law everybody should have the same law applied to them and if you dont want a situation where theres some part of the country that interprets or implies federal law differently from a court in another part of the country in two different people are being subject to based on where they live so the court solves those divisions. We call it and take it because theres a split in the circuits meaning u. S. Courts of appeal and a lot of what the courts does is make sure theres uniformity is federal law is interpreted and federal law is implied but there are cases that in case their importance. Anytime a lower courts invalidates a federal statute on constitutional grounds we take that case just because we think if there is something that congress has done that is getting invalidated by a court it should be us in the top cou court. Sometimes we take cases just because we know we will have to deal with them at some point and its the 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. To ever not take a case because its too hot to handle politically . N not in that sense. Hii think there are some potentl reasons so lets not take this now and we just handled several cases on the same subject and we should see how that plays out but i dont think there are very often ors times where its just like oh my god, were scared of doing this. If it is the kind of legal question that is the legal question that we should resolve then you know, we do it. Sometimes there are groups of justices that want to revisit an earlier precedent and may be change it and looking for an opportunity to take a case and do you defer to them saying if they want to take it, well talk about it or do you if you dont think the outcome will be to your liking do you say i think i vote against this one . I dont think theres a difference in general and i think each of us make our own decisions about what kind of cases we should take and about how we should decide in them. Certainly if there is a case where somebody says i want to go back and overrule something there are good reasons not to do that. You might think it might be what you want to do but its not what i want to do. However you think it will come out, well or poorly, that will be a reason for not going alone. You get to this oral argument and you and your clerks read all the filings in the case and there can be many filings and you dont read those all amicus briefs, do you . At least one of my colleagues does. I tend to read of course all the filings and then i asked my clerks whichever clerk has the case and that person has to read every single brief but this could be an incredible number and it can be upwards of 50 and so then the clerk will say to me these are the few i thank you should read that Say Something different from what the parties have said. You have to carry these papers around with you all the time . Going home and theres a lot of them. Yeah, we sort of have technology now. [laughter] you read them. I tend to like reading themm in paper and marking them up because then iav do have to cary them but some of my colleagues read them on there to have a meeting with your clerks before the oral argument and pretty much hash it through and figure out how you will vote on the case even before the oral argument . We definitely talk it through before the oral arguments andn sometimes i will come out with a pretty goodd view of where i wil utme out in the end. But sometimes not. It depends on the case. One of the most fun parts of the job for me and for my clerks is we all sit around, the five of us, for each case and go through the arguments and i like them tt disagree with each other and almost if they are all too like i agree with what then i, you know, makes me plays devil advocateme myself or sometimes i find devil advocate and make it clear im unhappy with the agreement because i like hearing a different argument and try to figure out which of the ones that sound best. You common to oral arguments and we are lined up there on the dais and these lawyers prepare extensively for this and get three sentences out. Three sentences would be a good day. And already someone is jumping on question and not anything about they said in the three sentences but this justice here we now get people to minutes of. Ninterrupted time two minutes . Which feels like a lot, actually. Literally three sentences would have beenld or were being charitable and we gave them three sentences today and my first argument your first argument on any appeals it was an important case in the reargument of citizens united. I knew that wasis pretty importt case. We had taken one sentence out. I was very nervousus because it was my first argument and i was very nervous and got this one sentence out and Justice Scalia leaned over the bench in this weight that he had and said wait, wait, wait like that and then he told me this one sentence that i had managed to utter which seem to me not very consequential first sentence was completely wrong. [laughter] it was kind of grate. I did not mind it at all and i sort of preferred it. This year ive been watching these people try to fill up two minutes of time withoutry being interrupted and thinking we should just do them a favor and interrupt them because sometimes it is doing people a favor. It gets you in the game right away or to respond to and i know thats what i did for me. When justice glia challenge me then you have to go back at him. To peoples minds get changed by oral argument . Sometimes. Sometimes not. It depends on the case. There are some of the cases often some of the highprofile cases and people have pretty strong briars and know pretty well how they feel about a particular subject in part because they have seen similar cases on the same subject many times before and theyve developed a way of thinking about an area to look a and you are not going to get them off that way just by g having a good half hour at the podium but there are also cases that we do that that is not the case where people are coming to its fresh and people are really engaged by the arguments and trying to figure out t how to think throuh a caseow. A large part of what we do that argument two is talk with each other. There is the lawyer and the lawyers is awfully important and sometimes the lawyer says things that make you think its not the case in a different way but so to some of your colleagues say things that make you think about the case in a different way and a big part of what we do at argument is basically have our first conversation together about a case which we dont have we dont meet about cases before argument so it really is our first opportunity in the next time we meet is when we are in conference and voting on cases wand we will really start to ve so because that is the way our deliberations are structured the argument becomes crucial for judges to talk to other judges and to say this is the way im thinking through and to put that in everybodys head to think about in the next couple of days before we meet in conference. And its a few days later you meet. A few days later we meet ind conference. And go around the room as you described and is it like one minute pitch or it varies. Sometimes its short and sometimes long and it depends on the cases and how completed it is. It depends if sim other justices have said things before you. And then respond spirit either you respond or if you agree with them you just say i agree with what you said. And you dont have to hear it again for me. Often you respond to them and its like i want to make three points but also want to respond to a bunch of other things that have been set around the table. Does the discussion ever change anyones vote . Yeah, for sure. Again it depends on the case but you know, not on frequently someone said i came in thinking this but something that another justice said makes me rethink it and im open to continuing to think about it and to being persuaded in our member cases where people would say literally he would go around the table someone with already spoken with say im changing my mind and if somebody change their mind because of something i said i would count that is a pretty good day. But i think every justice has done that at some point or another. So there are two sides in the sense after you vote and you want to do something and some group of people want to do something and the others dont and 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 like to write this one . Do people do that . I dont do it. Does anyone else . I think that is the role of relatively junior justice. I think maybe as you get more senior maybe as you get more senior you feel as though youve paid your dues and maybe you ask for a case. Whats the criteria that the will use and how assign it . Do they spread the work around or is it something you know a lot about or what is the reason that someone gets assigned a case as opposed to been and a signing justice so im really not sure. Probably different. Each justice probably thanks about that divinely. The piece justice is often the assigning justice but not always. Sometimes it could be Justice Thomas or Justice Ginsburg and used to be Justice Scalia for a number years before he passed away. I think you know who will do a good job on this but we dont have different subject matter areas. Its not like this Justice Alito specializes in this area and Justice Kagan specializes in that area. We dont do that. We all write about everything so it sometimes becomes gated process. Youve heard ten or 12 cases and people are all over the map on them and you have to figure ou out ev everybody by the end of the year and even in each gets an even number of assignments so you have to figure out how do you parcel out all these cases given that people are in all different sides. Sometimes its pretty common gated. You get assigned to write an opinion and do you in your case do take the first cut at writing the first draft or do the clerks to do the first draft or do split it up and say ill do the first and you do the facts and ill do the others analysis, how do you divide the work . The way i do it is like clerks to a first draft and i put it on one computer screen and open up a new page on another computer screen and i start writing. I use the draft as a launching pad for my own thoughts and i use it as a collection of good ideas and a collection of citations. But i write sort of from start to finish my own draft and i do that because that is the only way i can think through a case even if i have a very good draft and if i am intimately editing and there is just no way i understand the case as well as if i just right through it by myself. I do that because i want every opinion to sound like me and i have a lot of great clerks and writers but they sound like themselves and they dont really sound like me. Thwant every opinion to sound the same. So, i do that and then i give it back to the clerk who originally gave me the draft and that clerk will edit it and go through a round of edits and i will give it to my other clerks and we go through a round of pretty serious edits practices before usurping it to the people who wrote on your side or doesnt circulate to everybody . This is before i circulate at all. Then onceo you circulate it o the other judges do they send you memos back . Do they call you on the phone or come by the office and say alayna, you know that fourth paragraph i cant live with that so how does it sometimes i love every word but when they dont usually its we are memo writers and sometimes we talk and sometimes we get on the phone and go down 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 a way that every other justice on the court can also see. Its a transparency and writing memos rather than just having a private conversation. Rs some private conversations are had and is not like theres a strict rule againstah it but for the most part we write memos to each other saying i dont like this part of the opinion and could you change that part or could you knockout this, add that and a lot of that was on. If you write a dissent to wait to read to the majority of the opinion before you do the dissent or do you start right off . I almost always wait. Then you announce your decision at the beginning of the session and sometimes you read from the bench. Anyway, how do you decide which of your opinions or dissent that you will read from the bench . Ive only done it three times in nine years i think thats pretty typical. I think most judges go through a year and never do it and read a dissent. The times you do it is when you say the dissent is really of great importance to the law and the country so i have done it three times. One was my first year which was in a campaignfinance case that was a statute out in arizona that the courts dropped down as being a violation of the first moment and it was a kind of Public Finance scam that i thought was perfectly appropriate and consistent with the First Amendment. The second time i did a couple of years ago on a case which dealt with the way whether schemes by which employees contributed to labor unions even if they were not members of those unions were a violation of those employees free speech rights and 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 and so i wrote the bench on that and last year i read from the bench on a gerrymandering case where the court decided i thought quite wrongly that courts could not get involved in reviewing even the most extreme gerrymanders, places where you could vote 51 republican and the republicans would end up with two of 11 seats or ditto for democrats. The court said it did not have the tools to invalidate those schemes even though by the courts own admission deprived people of equal right to vote and i thought that was a bad decision and i read from the bench on that one. So the criteriae is when you want to do call attention to something or when you think the majority is particularly out of there are a lot of descents where you dissent because you thought the opinion is wrong but you know, there are two ways of seeing something and sometimes it makes it more important to decide something than to decided right and you thank you ought to dissent in order to give so that the parties know it wasnt a slamdunk decision and there were two ways of thinking about the case and after the cases over he dont think about it anymore and its just like thats what the court decided and you go about your business but i think there are some dissents and not even one year. Three in nine years which where you think theres somethinghe on badly wrong and where you think that its a decision of real moment to the American People and who are you talking to . Partly you are saying to the American Public that i think thats only bad is gone badly wrong here and sometimes they reckon public could do something about it and you think about the gerrymandering case within months there were state courts that decided to invalidate extreme gerrymanders and there are people all over the country who are trying to put into place election systems that are not subject to extreme gerrymandering. Sometimes there are people who can actually change mattersha on the ground that sometimes you are just writing history and those first amended cases that i talked about at the beginning of this where holmes and brandeis really set the foundations of First Amendment law in our country so that 100 years later we believe what they told us about the importance of Free Expression and an america in those cases started the dissents and it wasnt until the kids later that they became the seminal track. Is it more fun to write dissents yes and no. Its not good to lose. Its especially not good to lose if you think that its a matter ofs significance but yes, as a writing kind of yes, more fun to write isnt. This week the House Intelligence Committee held five impeachment inquiry hearings over three days. This weekend catch some of the key moments. Saturday testimony from Lieutenant Colonel alexander National Screening Council Director for european affairs. Kurt volker, formal special envoy to ukraine met saturday morning at 10 00 a. M. Eastern on cspan. On sunday the u. S. A master has a marks alibi be on a hill, National Screening Council Former director for russia and david holmes, u. S. Political Affairs Counselor in ukraine. That is sunday morning starting at 10 35 eastern on cspan and you can stream the hearings any day online on cspan. Org impeachment. Cspans campaign 2020 has led coverage of upcoming president ial campaign events. Saturday at 2 45 p. M. Eastern on cspan, senator Elizabeth Warren speaks with voters about a town hall meeting in manchester, New Hampshire. On sunday at 5 00 p. M. Eastern senator Bernie Sanders holds a rally with supporters in portsmouth, New Hampshire bit on monday at 8 30 a. M. Eastern on cspan2 erratic president ial candidate and former Massachusetts Governor will speak at the politics and eggs breakfast in manchester, New Hampshire. Tuesday at 7 00 p. M. Eastern on cspan President Trump holds a Campaign Rally in sunrise, florida, his first air since changing his residency from new york to florida in late october. Live coverage on cspan and cspan2. Watch online at cspan. Org or listen on the go with the free cspan radio app. Booktv has lied weekend coverage of the Miami Book Fair. Starting saturday and sunday featuring offer discussions and interactive viewer segments treat on saturday at 11 00 a. M. Eastern republican senator tom cotton talks about Arlington National cemetery, former obama and ministry shirt National Security advisor anyone investor susan rice stresses her life and career. Patrick, chair of constitutional studies at the university of notre dame on liberalism. Wired magazines Andy Greenberg discusses russian hackers. On sunday at 10 30 a. M. Eastern are live coverage continues with former undersecretary of state in the Obama Administration Richard Dingle on International Politics with disinformation. Pulitzer prize winning journalist on the 1950s scare. Former professional Football Player on toxic masculinity. Watch live coverage of the Miami Book Fair saturday and sunday on cspan2 book tv. Lonnie bunche, new secretary of the Smithsonian Institution testifies on Museum Programs and operations before the senate rules and demonstration committee. Secretary bunche outlines his priorities for the institution