Erwin Chemerinsky: Good afternoon. It’s a wonderful day for Berkeley Law and for this campus. It’s my great delight to welcome you to this special event with Justice Elena Kagan. My name is Erwin Chemerinsky. And I’m incredibly, fortunately the dean of Berkeley Law.
I want to begin by introducing you to our terrific chancellor, Carol Christ. I know that for many in the law school, you’ve seen her name on constant email. This may be the first time you’ve gotten the chance to meet her in person. Chancellor Christ came to Berkeley in 1970 after receiving her PhD at Yale University. She joined the faculty here as a professor in the English department. She became a department chair, the dean of humanities, the provost, the executive vice chancellor, and then she left for 11 years to be the President of Smith College. She returned to Berkeley. She became the interim provost. And in 2017, she became the 11th chancellor of the University of California Berkeley.
I’ve been a law professor for a long time now. I have never seen a chancellor or a president of campus as universally respected and beloved as Carol Christ. And so it’s my great pleasure to turn the microphone over to her now.
Carol Christ: It’s such a thrill to me to welcome you here and to be part of this really exciting occasion today. Today we have the great honor and pleasure of welcoming to the campus U.S. Supreme Court Associate Justice Elena Kagan for a conversation with Berkeley Law Dean Erwin Chemerinsky.
This is a special time to welcome a sitting Supreme Court Justice, reminding us of the vital way of the importance of the rule of law, not least in these very polarized times. Her visit is a wonderful opportunity for the community, our students, to hear from a tremendously accomplished lawyer, an influential legal scholar, a public servant of the highest caliber, and if that sounds too heady, also the only justice to ever cite spider-man comics in a majority opinion, which she did in the 2015 patent case Kimball vs. Marvel Entertainment. Justice Kagan was born and raised in New York City and graduated from Princeton University, the University of Oxford, and Harvard Law School. After Harvard, she clerked for a federal court of appeals judge and then for Supreme Court Justice Thurgood Marshall.
She began her career as a professor at the University of Chicago Law School, leaving to serve as Associate White House Counsel and later as policy advisor under President Bill Clinton. She then became a professor at Harvard Law School, and in 2003 was named its dean, its first woman dean.
In 2009, she became Solicitor General of the United States, the officer responsible for representing the federal government before the Supreme Court. And in 2010, President Barack Obama nominated her to the Supreme Court itself to fill the vacancy arising from the retirement of Justice John Paul Stevens.
Justice Kagan is joined onstage this afternoon by Erwin Chemerinsky, Berkeley Law Dean, and Jesse H. Choper, distinguished professor of law. A graduate of Northwestern University and Harvard Law School, Dean Chemerinsky took up the Berkeley deanship in 2017 after serving as the founding dean at the UC Irvine School of Law for nearly a decade.
He previously taught at Duke Law School, the USC School of Law, the UCLA School of Law, and DePaul University College of Law. National Jurist Magazine has several times named Dean Chemerinsky the most influential person in legal education in the United States. Without further ado, please welcome Justice Kagan and Dean Chemerinsky.
Elena Kagan: It is so terrific to have you here today. Thank you. Today, Justice Kagan began by having breakfast with our students, taught a class, had lunch with the faculty, and is now here with you.
So if I fall asleep in the middle, you know why. He’s been overworking me.
I want to go back through some of the things that Chancellor Christ said in your biography and ask some of the things about you growing up and coming into the career path that you’ve chosen. As a child, at what point did you think you might want to be a lawyer?
I don’t think I did as a child. My father was a lawyer, so it’s not as though I didn’t, you know, it’s not as though law was something foreign or alien, quite the opposite. But, I hate to say this, but it never struck me that what he did was all that exciting. You know, now I look back on it, and he actually took enormous pleasure in his legal career. And I can completely understand why.
But he wasn’t the kind of … he didn’t do drama. He thought of going to court as a kind of failure. He was devoted to helping people solve their problems, whatever they were. But it wasn’t like you see law on TV. I mean, Justice Sotomayor has talked about how her view of law came from Perry Mason, and …
Erwin Chemerinsky: Mine, too, by the way.
Elena Kagan: Yeah, well, I think if you grow up with a lawyer, you know Perry Mason is not really an accurate portrayal of law. And I guess it never struck me as that was the career path. But I didn’t quite know what the career path was. And for while in college - I was a history major in college. And for a while, I had decided I would go on and get a Ph.D. and become a history professor. So, I guess that was what I wanted to do then. And then, my senior thesis convinced me that that was not the answer.
And so I went to law school, honestly, for all the reasons that people tell people not to go to law school. I mean, I was once - as Dean, I’m sure you’ve done this - you talk to these groups of college students. And I was once talking to one of these groups. And I was saying all the standard things about how you should really know why you want to go to law school. And you should think about going to law school. And you shouldn’t view it as you’re going there because you think it will keep your options open, and you can’t think of what else you would do.
And I thought, "That’s exactly why I went to law school.” Because I had eliminated everything else. You know, I didn’t like blood - doctor, out - you know, that sort of thing. And I thought it would keep my options open. So, I went to law school for the worst possible reasons.
I’m not going to ask for a show of hands from my students of how many know who Perry Mason is.
Erwin Chemerinksy: OK, dated, is that what you’re saying? We’re both dated.
I am curious, though - when you were in college, I know you were an editor of the newspaper. I have said many times behind your back that I think you were the best writer of any of the justice on the Supreme Court. You write with tremendous clarity. You write with great force when it’s appropriate. Does that come from your journalist background? Or how did you develop that writing skill?
Elena Kagan: Well, don’t say that in the hearing of any other justice, OK?
Erwin Chemerinksy: OK.
Elena Kagan: But thank you, it means an enormous amount to me. I mean, I work very hard at it. So I appreciate that. I did do journalism in college. I have to say I think that there were two people who taught me how to write.
And the first one was my mother. And my mother was an elementary school teacher. And she was a very gifted writer herself. And she really cared about writing. And she cared about teaching. She held me to high standards, shall we say, and insisted that I write well. And I didn’t always appreciate it at the time. But looking back, it was, you know, I think maybe she was the most important influence on me.
But the second was a college professor of mine who was the advisor for that senior thesis that I talked about, it was his first year as a professor at Princeton. He’s a very gifted historian named Sean Wilentz. And it was his first year. And I don’t know if he still does something like this. But he was excited, and he was full of energy, and he loved being there, and he loved teaching. And he literally went over every line of my senior thesis twice. And by the time I got out of that experience, I had learned so much about how to communicate ideas.
So I still work hard at it every day. It’s not something that I think, oh, I just sit down at the computer, and it all comes out perfect. I have known a few people like that in my life. I don’t think that there are very many. But I think that they exist. That’s not me.
I work really hard at it. And I continue to learn. I continue to learn from some of my colleagues, from some lawyers who appear at the court. I try to read good writing. I think maybe the best way to be a good writer is to continually surround yourself with good writing and to see what good writers do. I try to avoid bad writing, although that’s not altogether my choice, because I have to read all these briefs, and, for the most part, I think that the Supreme Court is gifted with, it has a wonderful bar that argues a lot of our cases. And for the most part, I think they do a superb job. And their briefs are really a pleasure to read. But every once in a while, you pick up one, and you think, every moment I spend with this brief, I become a worse writer.
I work at it. I think you have to work at it for almost everybody. The idea that, for most people, at least, that it just sort of flows, I have not found that to be true. It’s tough work.
Erwin Chemerinksy: You go to law school for the reasons that you said. What was your law school experience like? Did you enjoy it? Did you hate it? A lot of the audience here are law students, including some first year law students in about their sixth week of classes. What was your experience like?
Elena Kagan: Yeah, can I ask you about that? So how many of you are law students’ OK, nobody else was interested, I see.
And how many of you are first years’ Pretty good, pretty good. But I like the fact that the second and third years are still coming, you know? I loved law school. So I told you I went there for all the wrong reasons and did not really much expect to like it. From the moment I came in, I loved it.
And I think it combined, for me, two things. And it’s still, honestly, the reason I love law. First, a lot of law is like doing puzzles. A lot of law is about logic shopping. A lot of law is very analytic. And if you like thinking that way, you know, if you’re the kind of person that likes doing crossword puzzles, or games of logic, or things like that, if you like thinking that way, there’s plenty of it in law. And I do like thinking that way. And I view it as a kind of intellectual challenge to try to master bodies of law. And so that satisfied one need.
But combined with that is that law is an instrument to advance human welfare. And Chancellor Christ talked about the rule of law. Every lawyer is charged now with, you go out, and you’re supposed to protect the rule of law, promote the rule of law.
And that sounds kind of abstract. But there are all kinds of practical ways in which you can use law to make a difference to people, in which you can use law to help people. And I found the combination of those two things really satisfying, that on the one hand, it was as intellectually challenging as I could possibly imagine, and I liked the kind of thought processes that it demanded, but on the other hand, that you could see how it made a difference in the world, and how you could use it to make a difference in the world.
And I think it was necessary for me to think that that was possible. I think part of why I decided, in the end, not to be a historian was that I wasn’t sure that that was true, that it’s with a historian. The enterprise is just about something else.
Erwin Chemerinsky: It’s interesting. We went to the same law school several years apart. And I think our reaction was somewhat different. I enjoyed the first part of what you say, the intellectual puzzle. But I didn’t find enough of the second part, how to use law for social change. I felt there were just too many courses where they were learning the doctrine without how to use it to make society better. Do you think that’s changed over time?
Elena Kagan: I think, partly, I was very lucky. I walked into the law school we went to, it has certain sections and a group of first year professors. And I think your first year professors make such a difference in the way you experience the law school as a whole. And I had this wonderful set of first year professors who had gotten together for the specific purpose of trying to rethink the legal curriculum.
It was called the experimental section. The experiment did not have a long life at the law school. And there were parts of it that were not all that well thought out. But in this, it was extremely good. And it made you feel like you were on the cutting edge of a really important enterprise.
And I think having been introduced to law in that way, that I continue to think of it that way. Or maybe the law school had just changed in the interim.
I think now, for example … I bet at this law school, and at the law school, which is Harvard, that we both went to, it’s almost impossible not to be confronted with that aspect of law, with how you can use law to make a difference in the world.
Erwin Chemerinsky: I hope so. Certainly, that’s something that this school has such a strong public mission, and I hope it’s imbued in our curriculum. Having been a law professor, and a law dean, and, of course, a law student before that, is there advice you would give to these law students in the audience based on your experience? Are there things you wish you had done in law school that you didn’t do?
Elena Kagan: Yeah, well, I’ll give you the advice that I used to give when I was a dean. And one has to do with what you do in law school. And then one has to do with how you think about your career. I think what you do in law school, I mean, I think you should experiment.
Now, some people, they know exactly what they want to do. They have a passion for a particular thing. There’s a mission that’s already defined in their heads. And there’s nothing wrong with that.
But I think one of the virtues of coming to a place like Berkeley Law School is that there’s everything here. And you have three years. Some people think three years of law school is too much. I think not, in part because of this, because it allows you to try different things, and to do things that maybe you’re not so sure you’ll like, or you’re not so sure you’re good at, or you’re not so sure you’ll ever use again, but to try them, and to see what they’re like. And some of them will work. And you’ll say, wow, that was fantastic. It was a fantastic intellectual experience. Maybe it opened up something to me that I didn’t know was there.
So I would say, on that, take advantage of the riches of a law school like the one that all of you go to, like Berkeley Law School. What do you tell them?
Erwin Chemerinsky: Very much the same advice. I totally agree. This is, for most of our students, their last time to be students. So it’s a wonderful opportunity to take the classes that are of interest to them. I always tell students, for example, don’t worry about taking classes because they’re on the bar exam.
Elena Kagan: Yeah, for sure.
Erwin Chemerinsky: That’s what the bar review course will prepare you for. Take the classes that really will engage you intellectually.
Elena Kagan: Even in California
Erwin Chemerinsky: To take the classes that engage them intellectually, the ones that they think will be the areas of law they want to practice in. In my experience, about half the students come having practice they’re going to be interested in. But a good number of those end up, during law school, finding something else.
Elena Kagan: Exactly, and law school is sort of the chance to experiment, and to play. And I think the career advice I would give is a little bit along the same vein. Now again, people are different. And some people, they know what they want to do, and that’s all they want to do. And that’s what they want to do for their entire lives. And that’s great. If you have something like that, you know, go for it.
For me, that wouldn’t have worked. I think you’d got some sense of this in Professor Christ’s remarks. I used to get introduced at places and think, "Everybody thinks I can’t keep a job,” you know? Because I bopped around a lot until I came to this job, basically. Which it’s not an option, you know?
But I did this for two years, and this for three years, and this for four years. And I sort of liked that. Now again, different strokes for different folks, but I think one of the things that I think about law students is that they’re too risk-averse, and that they’re too ap
t to do just what all of their classmates are doing, and not to think a little bit harder about what they want to do, and not to be able to take some risks.
And people at a school like this, they can take some risks. Nothing bad is going to happen to them, or hopefully. There’s a big safety net underneath you, almost always. And I guess I thought of the law students I taught that they had everything planned out till the day they died, practically, and that it prevented them from taking advantage of opportunities. Because it was like, "I’m sorry, but that’s not on my path. I have this path. And first I do this, and then I do that. And don’t you know? I need to do this before I do that.” I’m not saying don’t plan at all. I’m not saying don’t think about things.
But I think you have to be willing to go off your path and to do things just because, "Wow, that’s just come along. I never thought of that at all. But it seems so interesting and exciting. And so I’m just going to do it, even though I have no idea where it’s going to go, and even though there’s part of me that’s a little bit worried that it’s going to be a dead end and it’s not going to go anywhere.” Because, again, you’re really smart. And you come from this terrific law school. And you have ways of getting back onto a path where things work out. And what you’ll miss if you don’t do things like that is, I think, most of what makes for a great legal career.
If I look at people and say, you know, "Who are the lawyers that I know who have had just such fantastic, exciting, interesting, varied legal careers?” For the most part, what they will all tell you - and certainly I’m going to tell you this - is that so much of it was serendipity. So much of it was just luck. And the only part maybe not being luck is that you had determined to keep your eyes open for new things.
And once you keep your eyes open for new things, just things come. And then you can have one of two choices. You can say, "I’m sorry, that’s not on the plan. I don’t know where that goes. That seems like a risk.” Or you can jump in. And I guess I would say law students too much plan and too little jump in.
Erwin Chemerinsky: After law school, you did two clerkships for Judge Abner Mikva on the United States Court of Appeals to the D.C. Circuit and for Justice Thurgood Marshall on the United States Supreme Court. In addition to being two enormously prestigious clerkships, those two judges share in common - they had a great deal of practical experience before they went on the bench.
Abner Mikva was a congressman. In fact, he was my congressman on the south side of Chicago growing up. He was also a White House counsel. Thurgood Marshall was the leading civil rights lawyer arguing Brown v. Board of Education, so much else. What did you learn from their experience as judges that you’ve been able to use yourself as a justice on the Supreme Court?
Elena Kagan: So for sure I learned a lot of the kinds of things that clerks learn from judges generally, you know, that clerks learn from judges who haven’t had all that experience. And both of them took their work extremely seriously. We talked about the cases in front of us. We talked about the opinions that were coming out of the chambers. I certainly developed my writing and thinking skills there.
But I think, as you suggested, that I was very lucky that both these men had so much to teach outside of that, outside of the usual judge to clerk education. So Abner Mikva, as you say, I think is the only person who has held such senior positions in all three branches of government. And I clerked for him on a court, which was the D.C. Circuit, which has a docket that is very heavily concerned with how government operates.
And, wow, did he know about how government operates. He just had a feel for the way in which government actors worked, how you could expect them to work, what was within the realm of possibility, what you could demand, what you couldn’t. And that proved extremely valuable to me in other parts of my career - when I went to the White House or being a judge myself and thinking about how agencies operate, how Congress and the president operates, what you can demand, again, what you can’t. So that’s what I learned from Judge Mikva.
And then Justice Marshall was just such an extraordinary experience. I clerked for Justice Marshall very late in his judge career. And, of course, he had had a career before he became a judge that, in some sense, one of the only Supreme Court justices that if you just erased the whole Supreme Court part, he would still be in the history books. And he would still have this iconic status.
The part of his legal career that was most meaningful was not sitting around deciding cases on the Supreme Court. It was criss-crossing the South fighting Jim Crow. And he was an extraordinary lawyer. He did something that’s unimaginable now. He did a ton of trial work. He did appellate work. He argued 18 times to the Supreme Court. He won most of those cases. He did criminal side. He did civil side. He did every kind of case imaginable with the one motivating thing is that it was all about advancing racial justice.
And I think he was the greatest lawyer of the 20th century. I think great lawyers should be - I mean, at least part of the metric, is how much have you done to advance justice? And nobody did more than he did. And he was an extraordinary lawyer, lawyer as well. I mean, he could cut to the heart of a case so fast. He had all these sort of incompatible skills. On the one hand, he could talk to the U.S. Supreme Court. On the other hand, he could communicate with juries. He had the common touch as well as this ability to do law at the sort of grandest stage.
And when I clerked for him, he was a little bit, I think, maybe taking the measure of his life. I think he was not in such great health. I think he knew that he didn’t have all that many years left. For whatever reason, we were gifted with that he wanted to tell us stories about his life. And he was the world’s best storyteller.
So we would go into his chambers. And first, we would do our normal chambers business– you know, the stuff that everybody did around the building. We would talk about the cases, and talk about the opinions that were circulated, and all of that. And then, at some point, he would segue into stories about his life and the law.
And he was a raconteur. He told stories with voices and facial expressions. And it was really kind of, make you laugh, make you cry. It was quite extraordinary. I’ve never experienced anything like this. And the stories - he had great stories to tell.
So he told stories about his boyhood, about growing up in segregated Baltimore, about his years at Howard Law School, and devising with Charles Hamilton Houston the whole strategy to overrule Brown v Board. He told stories about his work in Southern communities, trying to fight Jim Crow in various ways, about things he had done later in his life as Solicitor General, as he told stories about people. We heard all about Lyndon Johnson, and Martin Luther King, and sometimes not in the ways you might expect. And it was just an education in 20th century history that I will be forever grateful I got.
Erwin Chemerinsky: After you clerked, you’d go work for a law firm in Washington. Then you decided to become a law professor, starting your teaching career at the University of Chicago Law School. Why academia?
Elena Kagan: Yeah, well, I wasn’t sure. I didn’t go through law school thinking, I know I’m going to do academia. I thought it was a possibility. I wanted to try some things first. The first thing I did was actually, after I clerked, I went on to a presidential campaign. I worked for Michael Dukakis. When I arrived in Boston, the polls had him up by 17 points. And as the days went by, it just went, you know. So I try to not to think that that was cause and effect, and I think I thought maybe I would go into government. In the event, that didn’t work out. I decided that the kinds of government jobs I wanted were ones where you had to be in more sympathy with the administration than I would have felt myself.
So I went to a law firm, which was also one of the things that I had thought about at one time or another. I had a very good time there. They treated me well. I had great work. I did some criminal stuff. I did some civil stuff. The law firm that I went to had a very active first amendment practice. I was able to do some of that.
So I liked it very much. I was litigating. And what I thought I was not going to be happy with for the rest of my life was that, in the end, litigating, you have to kind of like the fighting part of it. You have to like the combat. And I thought a lot of the combat was socially useless, that there were too many people fighting about things that didn’t matter.
And so I thought that that was what was not going to wear well for me. You know, some people just sort of love that, the contest aspect of it. But I thought that there were only a limited number of years in which I was going to be happy with that. So I decided to try academic life. And I went to the University of Chicago and had a great time there, so wasn’t regretful.
Erwin Chemerinsky: After you had gone there and became a tenured professor there, you then went to work in the White House counsel’s office as domestic policy adviser. What inspired you to do that? And what was that experience like?
Elena Kagan: Yeah, well, there I was at the University of Chicago. And I had just gotten tenure. And I was really loving it - both the academic writing and also the teaching. I think teaching is a fantastic thing. But I guess what inspired me was a phone call from Abner Mikva. I don’t think I would ever have thought to leave. Except Ab Mikva had just gone from being a judge to being counsel to the president. And he called me up and he said, "Do you want to come work for me again?”
And first, I very much loved working with him. But also, I thought, "Wow, you know, I had just gotten tenure. I was sort of feeling like, what next? How do I make things exciting for myself going forward?” And I thought, "Now that would be exciting.” And I had always liked thinking about government, as a younger person and then continuing up.
And I thought, "Well, I guess this is one of these things.” It’s like somebody offers you that, grab it. And so I went. And I had two jobs there. I had my first job was in the counsel’s office. And I was a lawyer. And then my second job. After about 18 months, I was all ready to go back to the University of Chicago. Like most schools, the University of Chicago had a window in which I could leave. And it was two years. And I was coming up to that point. And I knew that if I stayed longer, I would have to give up tenure there. And that seemed a little bit nervous-making.
But I was having such a good time. And somebody had offered me a way to do things of, I thought, even greater significance in the White House, which was actually to leave the counsel’s office, to leave the lawyering part of it, and to go into the domestic policy counsel, to go be a policy maker. I still use all my lawyering skills. I think that’s actually why I was offered the job, was because I had those skills. But to do something different that sort of put you lawyering at the White House, they need their lawyers, and it’s important that they have really good lawyers. But lawyers at the White House are not at the center of things. The center of things is policymaking.
And so I went and did that for about another two and a half years. So all told, I was there for four years, which is quite exhausting. I mean, the White House is a pretty intense place, but unbelievably exciting. I mean, if you’re not excited by working at the White House, you know …
Erwin Chemerinsky: You obviously took the advice that you gave to the students. You took a chance. You gave up, basically, a tenured professor at the University of Chicago to stay and work in the Clinton administration for that time. I want to talk a little bit about how you dealt with disappointments. I understand you were nominated for the D.C. Circuit towards the end of the Clinton presidency. But that was allowed to languish. I assume, at that moment, it was a real disappointment - almost a federal court of appeals judge, and then it just didn’t happen.
Elena Kagan: I mean, it’s a high-class disappointment.
Erwin Chemerinsky: It is, but it’s still a disappointment. I mean, you know, from the perspective of other people’s lives, well, you’re going to go back and be a law professor. But it was almost a D.C. Circuit judgeship.
Elena Kagan: Yeah.
Erwin Chemerinsky: I’m sure there were other disappointments in your life of things you had hoped for and didn’t get. And you, of course, didn’t know the crystal ball that you were going to end up on the Supreme Court. How did you deal with those disappointments?
Elena Kagan: Yeah, I mean, I had lots of disappointments along the way. And, as you say, you picked the highest-class disappointment. It was disappointing. You’re nominated for a job like that, and then you don’t get it. But there were many others along the way.
I think sometimes people look at a resume like mine, and they think, "Oh, it’s just like this is a golden life.” What you’re seeing was the jobs I got. What you’re not seeing was all the jobs I didn’t get, right? And there were quite a number of those and quite a number of times where I thought, I’m not sure what to do next. I don’t know exactly how to turn this corner.
And I guess what I’ve learned is when, I mean, I just really believe this, even though it sounds like magical thinking, is that when a door closes, a window opens, and that sometimes the things that you think you wanted, it turns out that you’re better off not getting them. So that was true in spades of the judicial nomination.
I was nominated for the D.C. Circuit when I was pretty young, as D.C. Circuit judges go. I was nominated when I was 39. And I think if I had gotten that, I would have become a judge too early. Basically, then I would have done the same job from the time I was 39 till the end of my career. And I didn’t get it. I didn’t exactly know what I was going to do. I kind of had to get tenure all over again. This time I did it at Harvard.
But what happened was that, so I went to Harvard. I did go through sort of a process of getting tenure again. And then two years later, through a set of fluky circumstances, I became Dean. And if I look at all the things that happened between the time I was 39 and the time I was 50 and got nominated to the Supreme Court, I will tell you that I think I had a better time. I think I developed more skills. I learned more things staying in academia and in academic administration than I would have had going onto the D.C. Circuit.
And, indeed, the likelihood is I wouldn’t have gotten to the Supreme Court if I had gone that route. So I think you just never know how these things play out. And I think this is true for a lot of people when you talk to them about their careers, is that what you think of as a low point ends up being kind of a pivot to something that turns into a very high point.
Erwin Chemerinsky: I could definitely say the same thing. You’re at Harvard. You become the Dean of Harvard Law School. You do that for six years. From an outsider’s perspective, and from an alumni perspective, I have the sense you really changed Harvard Law School in many ways. I know you reduced the size of the first class in terms of the size of the sections. You did much to build community within the school. What do you regard as your most important accomplishments from the time of being a law school dean?
Elena Kagan: You know, I guess that I made the school more student-focused in a variety of ways. Harvard has always been a great institution. And it has had a great faculty who have done immensely important academic work. But in terms of its focus on the student, I think it’s gone up and down over the years. And when I came in, I thought that there was a real need to make sure that the school was oriented towards the students, that, you know, law school is there, really, to educate all these people.
And so I tried in a variety of ways to do that. And part of it was little stuff. I think I’m known at Harvard Law School, before anything else, for "She’s the dean that gave us free coffee.”
Erwin Chemerinsky: It’s a good thing to be known for.
Elena Kagan: The campus got much bigger when I was there. The faculty got a lot larger in order to serve students better. And we took seriously faculty engagement with students and faculty teaching. And I don’t think it’s at all gone backwards.
You know, I’ve been extremely lucky. Because my two successors - it’s a wonderful thing when you leave an institution that you care about a lot and you see people take over the institution and go in the same direction, and do the things that you really care about. And maybe because they’re newer they come in with a new batch of ideas. And so they could do things that you couldn’t do in your umpteenth year. And so that’s what I feel has happened there. It makes me very happy to see.
Erwin Chemerinsky: Well, in 2009, Preside
nt Obama named you the Solicitor General of the United States. And as Chancellor Christ said, that’s the lead lawyer in the Justice Department representing the United States government before the Supreme Court. As I understand, your first oral argument was in Citizens United v. Federal Election Commission. And, as I understand it, that was your first argument in any court.
Elena Kagan: Well, not quite in any court, but almost. It was my first argument as Solicitor General. It was my first Supreme Court argument ever. It was my first appellate court argument ever. I had done a decent amount of arguing in district courts. But it was a really new thing for me. I mean, new enough that when the job was offered to me I really had to think about taking it.
And this is one of these kind of crazy things … when President Obama got into office, I received a phone call. And it was to do a different kind of job. And they vetted me for that. And then, in the end, they decided that they needed to put somebody else in that position. And they turned around, and they said to me, "Yes, but what we really want you to do is to be Solicitor General.” And I said, "I think you have the wrong person. Because I don’t have these appellate law experiences.”
And they said, "No, we’re confident that you can do this.” And I said, "I have to think about it.” And I thought about it for a couple of days. And I guess I sort of said, "Well, I guess if they’re confident in me, you know, why should I be the stumbling block, right?”
And so I got there. And I was very nervous, obviously. The other parts of the job - and there are a lot of other parts of the Solicitor General’s job, other than being at the podium before the Supreme Court. But being at the podium is an important aspect of it. And that was the part that really made me nervous.
I was extremely lucky. The Solicitor General’s office is full of top-notch lawyers who are also super generous people and who didn’t think it was unusual to have somebody like me. They had seen S.G.s like me before. And they kind of had a, you know, they had figured out how to train people like me. Or I think that they thought that they could.
But my first argument was Citizens United, which was a scary one to do first, because you felt as though the whole world was looking at you. And the one thing that I did kind of think, because of the circumstances of that argument - it was a re-argument. When the court had ordered the parties to re-brief and re-argue a single question, which was whether to overrule two of the court’s prior cases. And when an order like that goes out, you know that they’ve decided to overrule those two cases.
So I never really felt as though the case hung on my performance. But it was scary. My heart was beating fast. And I think I owe a lot to Justice Scalia. Justice Scalia has a kind of argumentative questioning style. But he also has a style which lets you answer. And in some ways, it’s a very good style to bring a lawyer into the argument.
So I walked up to the podium. And I got about a sentence and a half out, no more than that. And I had thought that that sentence and a half was pretty anodyne stuff. And Justice Scalia leaned over the bench. And he said, "Wait, wait, wait, wait” four times. And then he proceeded to tell me that everything I had just said was wrong.
And I think it was actually a great thing to do. And I think he might have sort of known that. Justice Scalia and I knew each other already. And I think I was up there, and I was looking a little bit nervous. And he just got me into the thing. When somebody challenges you like that, you’ve just got to go back at them, right? And so I tried to. But then we had this great conversation. Because the kinds of questions that he asked were very direct, were very blunt, were very hard. But he would give you a chance to answer them. It wasn’t a performance on his part. He was going to ask the questions, but he wanted people who could answer them.
Erwin Chemerinsky: I think at my first Supreme Court argument, I got four words out before Justice Scalia interrupted me. So you at least got a sentence and a half. After a year, Justice Stevens announces he’s going to retire. And you’re considered for the Supreme Court. What was the process of interviewing for that, both with the president and, after being nominated, with senators?
Elena Kagan: Yeah, so with the president, I have to say, it felt a little bit old hat. Because the prior year, Justice Souter had resigned. And I was asked, at that point in time, even though I had just started as Solicitor General, but I was asked to put all my papers together and get them over to the White House counsel’s office. And then there were four of us who were interviewed by the president.
And it was a pretty serious interview. As you know, the president is a lawyer. And he taught constitutional law, and he …
Erwin Chemerinsky: And you knew him at the University of Chicago?
Elena Kagan: I knew him a little bit. But a little bit was good. He hadn’t started to teach when I left. But the University of Chicago very much wanted him to teach there. And so there were a number of recruiting dinners and things like that that I participated in. So that’s the way I knew him, but not as a colleague.
But he gave me a fantastic interview. It was a very substantive interview, and– just all the things that I thought about law, things that I thought about the court. But I did not get the job that time. So the president called me up in the end and said, it’s not your time, and I’ve decided to go with Justice Sotomayor. And he was very gracious and lovely.
But so the next year, I think he actually sort of said something like I think I might have more of these.
So the next year, I guess I a little bit sort of knew that I would be on a short list, because I had been. And then he interviewed me again. He interviewed me again, but I have to say that it was a bad day to interview. So do you remember the BP oil spill disaster?
Yeah, so that happened literally about an hour before I walked into the White House to interview with the president. And at first, it didn’t really look like he was going to interview me at all. Then he decided to. But it was pretty short. He sort of said, "I know you, Elena, and we did this last year. And basically, I’ve got to think about this oil crisis, this oil spill.”
But then he called me again. And the second conversation was definitely better than the first conversation. And, yeah.
Erwin Chemerinsky: And, obviously, any seat on the Supreme Court is special. But in terms of this one, this is the seat that Louis Brandeis held from 1916 to 1939; William Douglas held from 1939 to 1975; John Paul Stevens held from 1975 until you took the seat in 2010. If nothing else, this seat will hopefully provide you a great deal of longevity.
Elena Kagan: Yeah, so that’s how I - knock wood - think of it. I mean, it’s an amazing thing, really, that only two people are between me and Louis Brandeis, who has always been a judicial hero of mine. And then more personally, closer is Justice Stevens, it was extraordinary filling his seat, can’t ever fill his shoes. This is a man who served on the court for 35 years, who was really one of the legal titans - brilliant, independent-minded, enormous amounts of integrity, also enormous amounts of kindness. So it felt daunting to fill that seat. But it also gave me something to aspire to.
Erwin Chemerinsky: I want to turn to some students to ask questions. But I want to ask two questions before I do that. One is about dealing with people with whom you disagree. There’s obviously very heated disagreements on the court. I mentioned earlier your beautiful writing. I think your dissent in Rucho v. Common Cause at the end of last term - it was a partisan gerrymandering case where the court said, "The federal judiciary challenges the partisan attorney.” And Justice Kagan wrote one of the best dissenting opinions I’ve ever seen in any case. I certainly recommend our law students read it if you haven’t done so. But how do you then, having written a dissent like that, deal with the justices on the other side? How do you …
Elena Kagan: I thought you were going to say, how do they deal with me?
[Laughter and applause]
Erwin Chemerinsky: I’ll rephrase my question. How do you deal with each other?
Elena Kagan: Yeah, yeah, yeah, Justice Scalia had a saying, which was if you take it personally, you’re in the wrong line of work. And I think that’s true. Although I do think one should never be personal in one’s criticisms. I hope my Rucho dissent was not that.
Erwin Chemerinsky: It’s substantive.
Elena Kagan: I hope it was substantive and on the merits, not at all personal, and not at all questioning the good faith of the majority, which I believe the majority acted in good faith. But I think that this is a good example. Because how does he deal with me? How do I deal with him? I mean, I admire the Chief Justice enormously. If we had more time, I would give you all the Chief Justice’s many virtues.
And so I thought he got it wrong in that opinion. And I said, "Why?” That doesn’t make me admire him any less. And it also doesn’t make me like him any less. I guess I find it a little bit perplexing, this idea that you can’t like a person whom you disagree with strenuously, even on important matters. You know, I don’t like everybody who I agree with. And I don’t dislike everybody who I disagree with. Did I say that right?
So there are some great friendships on the court between people who often disagree about legal matters. I think maybe the best known is Justice Scalia and Justice Ginsburg. I was extremely close to Justice Scalia. I’ve just spent the last few days writing a forward to a book of his opinions, which I sort of made myself cry doing it, remembering him. And I like all my current colleagues and feel close to many of them. And I think, honestly, it’s what makes the world go around.
I guess I just don’t understand why it is that agreement or disagreement. There’s more to people than what they think about issues. People can be warm, and kind, and generous, and caring, and all the good things that you want a person to be, even if they don’t agree with you. And speaking from a strictly pragmatic point of view, if you ever want to do anything, you’re probably going to have to get along with people whom you don’t see eye to eye with on everything.
So whether it’s on the court or anyplace else, the ability to say, "I’m not going to let this stand in the way of a good relationship,” and also the ability to get to know somebody well enough so that you can step into that person’s shoes and see the world a little bit from their vantage point is, again, speaking only pragmatically, it’s very helpful if you’re trying to figure out how to convince them, or how to get them to see the world more your way.
Erwin Chemerinsky: One last question, and then I’ll turn it to the students for a few questions. If you were to pick one thing that none of us know about the Supreme Court that you learned being inside it, what would it be? What would most surprise us about the internal operation of the court that you discovered only by being there?
Elena Kagan: Yeah, well, I don’t think there’s all that much that might surprise people who are court observers. But I think that the one thing is what happens behind closed doors in that conference room. I think, certainly for me, I had been there as a clerk. And I had worked as Solicitor General. I felt as though I know a fair bit about the court. Honestly, the court is a conservative with a small c institution, in the sense that its rules, and practices, and procedures stay the same over time.
So when I came into the court as a justice, it seemed as though the way the court operated was not so very different from the court I had known, I think it was about 23 years earlier. But the one thing you don’t know is what happens behind those conference doors. Because no clerk can go in there. No other employee of the court can go in there. So I think that that’s what I was curious about. And it’s good. It’s good.
Erwin Chemerinsky: Do you have heated discussions?
Elena Kagan: Yeah, I think if you were a fly on the wall, you would think that the discussions are pretty high level, which is not to say that we get into every my minute detail in conference. We don’t. We leave a lot of the detail work until somebody circulates an opinion. And then people can really go over and say, this sentence is wrong, and that paragraph needs to be changed, and so forth.
So the conversations at conference are at a certain level of generality. But they’re pretty smart. They’re good conversations. With, you know, this from argument. When you go see an argument, you’ve been on the opposite side, you know that this court is an extremely well-prepared court, that the justices have read the briefs, that the justices know the case. And I think our conversation in conference reflects that. It’s substantive. It’s a conversation that only people who have really done the reading and done the thinking could have. And again, I think if you were a fly on the wall, you would be pretty proud of the institution.
Erwin Chemerinsky: Especially if they voted for my side more often …
Elena Kagan: Yeah, there you go.
Erwin Chemerinsky: But we won’t talk about that. Some questions from the students:
Audience 1: Justice Kagan, thank you so much for being here. My name is Mosin. I’m a 2L I wanted to ask, as someone who clerked for Justice Thurgood Marshall, whose central strategy as a lawyer during the Civil Rights movement was to turn to the court to advance justice and civil rights, do you believe, given the current composition of the court, that those traditional impact litigation strategies still have value? And what do you recommend to impact litigation advocates for whom the court no longer feels like an avenue to advance justice?
Elena Kagan: Yeah, so I’m going to disappoint you on this and tell you it’s not for me to say. I would not give strategy to any kinds of lawyers about whether to appear before the court, how to appear before the court. Those lawyers don’t need strategy from me. And it would seem to me sort of inappropriate in terms of my own role.
And that’s very important to me. I was talking about this with some of the students this morning– is I think that when you become a Supreme Court Justice, you know, maybe some people think, well, you’ve risen to this highest point of the legal profession. And now you get to opine on everything. And now you get to just try to, in every way possible, make the world the world that you would like to see. And it’s not true. Or it’s at least not my own conception of the role is that– the legal system has many different institutions and many different people playing many different parts in it.
And I think you have to understand what it’s given to you to do and also what it’s not given to you to do. And the latter is just as important in terms of doing your job well as the former. So understanding your constraints, and understanding the limits of your role, and understanding that– for example, that I shouldn’t be giving strategy to lawyers of any kind is, I think, a pretty important part of my position.
Audience 2: Hi, thank you so much for coming today. My name is Sophia. I’m a 1L. My question is, how do you think the Supreme Court is positioned, or the law, in general, to handle the rapidly changing pace of technology? We have a system in which it takes many years, or even decades, to address an issue. And more and more, new technologies are raising new questions that not only could not have been foreseen but that might be developing far too fast.
As someone who has witnessed this dramatic change in your lifetime, what do you see as your role, specifically, and as the Supreme Court’s role, generally, in shaping this modern context?
Elena Kagan: So I’m not sure I caught every word of that question, but tell me if I’m wrong, that it’s basically about how technology is changing so fast, and how the court reacts to that.
And I think that this is one of the great challenges for the court actually. Because we live in a time where technology is changing and changing our lives faster than we could ever have imagined even a short time ago. And if you wanted to pick nine people who really understand this technology … I mean, I’ll just speak for myself and say you wouldn’t put me on that court. But you have to understand it to decide cases appropriately. And change in technology, it can create problems about the First Amendment. It can create legal issues about the Fourth Amendment. It can create many, many different kinds of non-constitutional issues.
closeAnd you have to understand it in order to decide those cases, right? So I think you have to be committed, as a judge, and I hope we all are, to knowing what you don’t know and to learn it. You know what you don’t know. And then you figure out, you develop strategies for how you can get to know it, and how you can get to know it in a way that makes your decisions not just sort of adequate, "Oh, I got through that,” but smart about technology and the way it’s changing in our world.
And so I think that that’s our challenge. And we’re lucky in that each of us has a set of clerks. They’re younger people. They often understand more about technological issues than we do. We’re lucky in being served by an extremely good Supreme Court bar and also by getting a lot of amicus briefs. And sometimes amicus briefs, more so than parties briefs actually do introduce you to the world of technological change.
Just the opinion, the dissent that I wrote in the gerrymandering case is a good example of this. Because one of the things that has changed is that current gerrymanders are very different from old-time gerrymanders because of the kinds of technology that are used to do them and how much more certainty that technology gives the map drawers in terms of making districts that are impervious to change even if the voters want to go in a different direction, or at least so I thought.
And some of the briefs that I used to learn about that and then to try to convey it in my opinion were briefs from people who really understood the technology, from mathematicians and non-lawyer types that said we could, we’re not sure we, you know, you’ve got to do the law, but here’s what you have to understand about the technology of this map drawing to allow you to make a legal decision.
Audience 3: Hi, my name is Ben Pollack. And I’m a third year student at Berkeley. Thank you for being here. Thank you for your work on the court. My question is, at a time when the court appears, at least from the outside, to be increasingly politicized, and votes largely fall on partisan lines, how can we maintain faith in the court’s fair and impartial administration of justice that, in Chief Justice Marshall’s words, we still have a government of laws and not of men? As someone who’s about to enter a career in the law, I desperately want to believe in the integrity of the court. But it’s becoming increasingly difficult for me. Can you help me?
[Laughter and applause]
Elena Kagan: Well, I think I can help. You know, I’m here to tell you that I don’t think that– you know, I think that your doubts seem a little bit overblown to me. I think that, and I don’t mean to say that in a derogatory way at all. I understand the questions that people have about this.
Let me point out a few things. I think the kinds of cases in which you are talking where the court seems very politicized are a small minority of our docket. Maybe if we take 18 cases, maybe 10, maybe 15, something like that, are cases that are 5-4. I don’t want to dismiss that. I mean, I don’t want to say, oh, so you don’t have any problems. Because it might be that those 10 or 15 cases are among the more important ones, and certainly the most high profile ones.
And it never feels good to lose those. I mean, it doesn’t feel good to lose the gerrymandering case. And it didn’t feel good to lose it by a 5-4 vote. But I do think that if you look at the court’s work, like, let’s say, last term, there were not very many of those cases. And what you’ll find much more of are people who did unexpected things.
And again, even in this small category of cases, which are the really highly contested ones, people who did unexpected things in cases that came out in unexpected ways, and sort of odd bedfellows, if you will, and I think you would have a hard time looking at last term and telling the story that you just told about the court as opposed to a story which said something like, look, yes there are different ways of looking at law on the court.
And certainly we have strong disagreements about things that matter. And sometimes you see us express those disagreements, and we should, because these things matter. But these are all people who are trying their hardest to do a job and who should be given the benefit of the doubt that they’re all operating in complete good faith and who, more often than you might think, do things that are not expected of them. And sometimes people praise them for that. And sometimes people castigate them for that. And that’s because there is a difference between being a judge and being a political person or being a person with strong political opinions.
And I think we’re all quite aware that we are judges. Now, are there going to be times where all kinds of different folks are disappointed? Yes, there are. Are there going to be times when I am? I think so. I was disappointed in that gerrymandering case. But– and does the fact that we live in a polarized world increase the responsibility of the court to think about these questions and to behave in a non-polarized fashion? I think it does.
I think we have to understand the world we’re living in and try, to the extent we can, to find common ground, try, to the extent we can, to reach consensus, try, to the extent we can, to see how the world looks from another point of view. And so the fact that this is a difficult time, I think, makes it incumbent on us to do all those things. And I think we should assume that responsibility. I don’t think it’s illegitimate at all. I actually think it’s the responsible thing for a court to do in these times is to remember that it has to look like a court in order to maintain people’s sense of legitimacy in the institution, which is a critical, critical thing. It’s the thing that really is essential to upholding the rule of law in this country.
So I take your question very seriously. And I think that the court should take your question seriously, as well as a question from somebody who might have the exact opposite views you have and who complains about the census case last year or something. But I think, don’t despair.
Erwin Chemerinsky: That seems like a very good place to stop. I know there are other students with questions. I have many questions. But please join me in thanking Justice Kagan.