University Place

A Discussion with Associate Justice Elena Kagan

– UW CHANCELLOR REBECCA BLANK: Good afternoon. [applause] Good afternoon, and welcome, everyone, to the Shannon Theater at the University of Wisconsin in Madison. I’m Chancellor Rebecca Blank, and I’m really delighted that you’re all here at what is going to be just a great event. I want to thank the law school, and I want to thank Dean Margaret Raymond for organizing the event, and I want to thank the Honorable Associate Justice Elena Kagan for her willingness to be here. I had the privilege of getting to know Justice Kagan when we both worked in the Clinton White House, and I am very happy to welcome her here to the University of Wisconsin. You’re in for a treat. I suspect that many of you in the room today were here almost exactly a year ago to see Justice Sonia Sotomayor, and you may be thinking to yourself, Now, does the U.S. Supreme Court send a justice to UW every year? Well, not quite.

But ever since Justice Thurgood Marshall spoke here at UW nearly a half century ago, we’ve hosted a number of members of the Court: Chief Justice William Rehnquist, who is a Wisconsin native, spoke here twice; Justice John Paul Stevens gave our very first Fairchild lecture; and Judge Anthony Scalia gave a rousing speech in 2001 that, this might not surprise you, actually drew a few protesters. The justices who’ve visited UW have been consistently impressed with the law school’s strong commitment to our law in action approach to teaching, an approach that’s grounded in an understanding that a lawyer’s role is not just to know and to apply the law but to solve complex problems in a way that improves lives and strengthens communities. That tradition is an important reason why our law school consistently attracts nationally renowned scholars to its faculty.

Dean Margaret Raymond is one such scholar. Dean Raymond has a deep understanding of the unique role of a public institution in educating lawyers to serve a very diverse mix of clients. That understanding drives her commitment to help build programs that introduce students from disadvantaged backgrounds to careers in the law, programs like the James E. Jones, Jr., Pre-Law Scholars Program launched two years ago to give college freshmen and sophomores from traditionally underserved groups a chance to see what the law is all about. I want to thank Dean Raymond for her leadership, and I want to thank our distinguished guest for what is surely going to be a fascinating conversation. And thank you all for coming. Please join me in welcoming Dean Margaret Raymond.
[applause]

– DEAN RAYMOND: Thank you, Chancellor. It’s my distinct honor to welcome you all today to this session, a conversation I will be privileged to have with our esteemed guest, Associate Justice Elena Kagan of the United States Supreme Court. Justice Kagan is a graduate of Princeton University. She secured an M. Phil. from Oxford and her J.D. degree from Harvard Law School. She is also a proud graduate of New York City’s Hunter College High School. After law school she served as a law clerk, first for Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit and then for Justice Thurgood Marshall at the United States Supreme Court.

She practiced briefly in a firm, then became a law professor, first at the University of Chicago Law School and later at Harvard Law School. She served for four years in the Clinton 4 Administration as Associate Counsel to the President and as Deputy Assistant to the President for Domestic Policy, and from 2003 to 2009 she served as the Dean of Harvard Law School. In 2009 she was appointed and confirmed as Solicitor General of the United States and in 2010 was nominated by President Obama to the U.S. Supreme Court filling the vacancy created by the retirement of Justice John Paul Stevens. She took her seat on August 7, 2010. She has my tremendous admiration for many reasons, but two stand out. The first is the rich diversity of the work she has done which makes her sort of a legal Renaissance woman. And the second is her steadfast determination, commitment, and focus. She is truly a model we can all learn from. Justice Kagan has very generously and very tirelessly given of herself throughout a very full day of engaging with our law school community and we appreciate that she’s taken this time to be with us and to visit our campus, and she told us this is her first visit to Madison, so please join me in offering her a warm Badger welcome.
[applause]

– JUSTICE KAGAN: Thank you.

– DEAN RAYMOND: Thank you.

– JUSTICE KAGAN: It’s really great to be here. Thank you very much.

– DEAN RAYMOND: I’d like to talk a little bit about law school. You went to law school, you taught at a couple of law schools, you were the dean of one. Do you miss hanging out in law schools? Is it fun to come back to law schools? Are there things you’re glad you don’t have to do anymore in law schools?

– JUSTICE KAGAN: Well, I love law schools, and so I like visiting law schools, a visit such as this one. I actually, as you said, I was dean of Harvard, and I go back to Harvard every year for a week and teach a course there. I just got back from that, so I’ve been thinking about teaching and how much I love it and how I sometimes miss it. And it’s great, you know, just to be back in an academic community where people tell you what they think. You know, there aren’t all that many people who are honest with Supreme Court justices. They don’t say, you know, “That opinion you wrote, it really stunk.” So I go especially to faculties that I know, like Harvard and to other places as well, where I can hear a little bit about what people think about the work we’re doing, the work I’m doing, where I can hear what students think. I mean, I was just in this week-long class and what I teach is I pick eight or ten of the cases that we’ve done the prior year, and you would think that nobody could tell me all that much about those cases, right, that I’ve spent a lot of time thinking about them, in some cases writing them, but every year I’m struck anew by the fact that you put students, law students, around a table and they have all kinds of interesting things to say, and, you know, at least once a day I think, Good gosh, why didn’t I or any of my colleagues think about this case in just the way that person thought about this case.

So I feel– I love going back to law schools because I feel as though I learn things about the Court, about the job we’re doing, and I just like being in the academic environment. You know, I think students are really energizing, I think faculty members are smart and perceptive about some of the things that we’re doing in Washington, so I do like these sorts of trips. Now, you know, that said, you’re a dean, I was a dean. There are moments where I think, I’m really glad I’m not there, you know. And I’m really happy with my current job, obviously, so I don’t spend all of my time thinking about how I’d trade back. But it’s nice to get to some law schools a few times a year, three, four, five, whatever it is I do, and to talk with people.

– DEAN RAYMOND: Let’s talk a little bit of how you came to be where you are. Your father was a lawyer. Did he bring it home? Did he talk about work? Did you think, I want to do what he does, or was that not a big influence on how you came to be where you are?

– JUSTICE KAGAN: You know, it’s a funny thing. I’ve talked with my colleague Justice Sonia Sotomayor about this, and I don’t know if she told this story when she was here last year. But when people ask her, Well, why did you become a lawyer? she talks about how in her childhood she watched Perry Mason episodes. And for those of you who are not of a certain age, Perry Mason was this TV show where there was a trial lawyer who was the main character and every week was another case and every week he would go to trial and sort of pull some magic rabbit out of a hat so that a case that he was clearly going to lose he instead was going to win. You know, he just discovered some new piece of evidence or he did some great cross-examination and it was all very exciting and glamorous, and you could see how somebody watching it could think, I want to be a lawyer. I want to do that. And I’ve said to Justice Sotomayor, I’ve said, you know, my father was a lawyer, and I knew that the law was not Perry Mason.

You know, quite the opposite, that my father actually was the kind of lawyer who never went to court. He actually thought it was kind of a failure to go to court because it meant that you hadn’t solved the problem by other better means. And now I really understand what gave him such incredible satisfaction in the work that he did, and I also understand better than I did then the extraordinary value of that work, because he was a real problem solver. I mean, he wasn’t somebody who went to court and, you know, much less trial courts where he was pulling rabbits out of hats, but he worked to solve people’s problems, and there is very little more valuable one can do in the legal profession or in life.

But then I have to say I was not mature enough really to get that and it seemed a little bit staid for my taste, actually, and I went to law school for all the reasons people tell you not to go to law school. I went, you know, because I was trying to keep my options open and because I couldn’t quite think of anything better to do, and I thought of law school as a little bit of a holding action. But then it turned out I loved law school. You know, I got there and I thought that the questions were fascinating and challenging and I thought that the combination of that with the ability to– you could see how lawyers could do things in the world, could improve communities, could improve– could, you know, better people’s lives. So you had both a sort of practical like you can make a difference with this and also the more intellectual, you know, this is just really interesting, and the marriage of those two, you know, I was pretty lucky given how little I had thought about why I was in law school, but I knew pretty much straight away that I had landed in a good place.

– DEAN RAYMOND: I know you’ve said that your mother taught you to write and that, you know, every fifth grade paper was of supreme importance. Talk about her influence on you a little bit and how that– sort of what you took away from her that stays important to you now.

– JUSTICE KAGAN: Well, I’m going to answer that question, but I’m going to preface it by letting the audience in on this little secret. Maybe some people know. You said, “She’s a proud graduate of Hunter College High School.” We’ve known each other for how many years, Dean Raymond?

– DEAN RAYMOND: [inaudible]

– JUSTICE KAGAN: We’ve known each other for 45 or so years.

– DEAN RAYMOND: Could she not have done that?

– JUSTICE KAGAN: Now, we’re not that old, so that suggests that we met each other really young, and indeed we did. We met each other in junior high school, and we were, you know, 12, 13, something like that, and we were great friends in junior high school and high school. We went to school together, we lived very near each other, I was in your apartment a lot, you were in my apartment a lot. So when you ask me a question about my mother, like there is part of me that says, Well, you know my mother.

– DEAN RAYMOND: A formidable woman. But I thought maybe you would talk a little bit about her with everybody else who is here.

– JUSTICE KAGAN: Okay. Well, formidable is a good word for my mother. You know, the gender roles 11 in my household were a little bit mixed up, you know, the way they’re traditional, because my father was a very gentle man but my mother was formidable. She was tough. And she was very demanding, but, you know, she was not the easiest mother because of that. I have known people with easier mothers. But, boy, my mother’s voice is in my head all the time because, you know, she demanded things but she taught you to demand things of yourself, that my mother had this really strong belief that you could do things well or badly, you know, and you could show commitment and discipline or you could not and that the way to live your life, your personal relationships, your jobs was– your school work, whatever it was, was with a sense of responsibility and discipline and commitment and hard work and effort. And, you know, it’s not like I always live up to those things, by any means, but I’m awfully glad that there is like this voice in my head, which is my mother’s voice, saying those things, and so pretty important.

– DEAN RAYMOND: How about other mentors: teachers, employers, people who made a big impact on your life?

– JUSTICE KAGAN: I feel incredibly lucky. I’m sure this is true of– I kind of think basically that nobody succeeds in life without other people, that, like, the idea of doing it on your own is pretty ridiculous. And I can look at every stage of my life and say here are the people who really helped me, who helped me understand what it was to do this thing well. And, you know, I can do that in law school and then I can do it when I went to a law firm, and there were particular partners who I dealt with who really modeled what lawyering was for me. And then when I went to the University of Chicago and I didn’t know anything about teaching or about how to construct a scholarly career, there were particular people who really took me under their wing and said, Here is how you can be a scholar, here is the way to teach, and it’s not like anybody held a key as to any, but listening to these people, I mean, made a huge difference to me in figuring out institutions and what it took to be successful in institutions. I mean, all the way– I’ll just– I mean, all the way to what I do now, but I’ll just sort of take a pit stop in the Solicitor General’s office where I walked into that role, it’s a role that preeminently means getting up at a podium and making arguments to an appellate court. I had never done that in my life before. And there were people there who had been in the Solicitor General’s office for decades who basically, you know, took me in hand and answered every question I had and then answered some questions that I didn’t know I had and sort of gave me a sense of how to do this thing. And I feel as though that’s happened really at every stage.

And for me the lesson for law students, and I know a lot of this audience is law students, is the best thing you can do is put yourself in a position where people can give you great advice, because just inevitably as you go through a career there are going to be people around you who know much, much more than you do, and a lot of them will want you to succeed and will want to be able to mentor you and advise you. And sometimes I think it’s just a little bit hard to ask for that because it looks as though, well, if I have to ask, it means I don’t know, and if I don’t know, they’ll take that the wrong way. They’ll say, “Oh, why doesn’t she know that,” but I think most people are not like that. They’re actually really glad to be a mentor and an advisor and a helper. And so, you know, making yourself a 14 little bit vulnerable and asking the questions is kind of the best thing that you can do.

– DEAN RAYMOND: Well, that worked for every job but this one, right? You walked into the Supreme Court and you had not been a judge before, and that’s pretty unusual in this day and age.

– JUSTICE KAGAN: Yeah. I’m the only one.

– DEAN RAYMOND: Talk about being–

– JUSTICE KAGAN: The only one on the current court, yeah.

– DEAN RAYMOND:– being a judge for the first time as a Supreme Court justice. Is there like justice school? How do you learn to be a judge?

– JUSTICE KAGAN: There is no justice school. I mean, this is actually a pretty interesting thing to me, because immediately I was asked to take part in the seminars. For every other kind of federal judge, trial judges and circuit court judges, they bring you to Washington and they do do judges school, and it’s like– you know, it varies depending on whether you’re on the district court level or on the appellate court level, but it’s like, you know, here is how to do the various things that you’re going to have to do. And there was no justice school. So it’s very much they throw you into the deep end of the pond and say, “Swim, why don’t you,” you know. And it was sort of funny.

The first year I kept on being invited to speak at these new judges seminars and conferences. I was like, I don’t know anything. Why didn’t they do this for me was my basic question. And, you know, it’s not that people are unhelpful. I mean, I think people actually want to be helpful, your colleagues, but I think everybody is very anxious to show you that from the moment you enter the institution, you are a full citizen. So I think that that’s– the Court is one place where people actually– you know, they don’t often volunteer advice because to volunteer advice is to suggest that they know more than you do, and naturally I think people really want to say to a junior justice, you’re one of us, you have the same vote that everybody else has, you’re the same justice. So of course I did ask a lot of people about a lot of things, but in this job a big part of it was trying to figure it out for myself. I had– I made a decision at the beginning of my first year, I had– three of my four clerks had clerked in the prior year for three other justices, and whenever I came to something where I thought I don’t know how to do this, I’m not sure what makes sense, I would say to these clerks, “Well, what did your bosses do,” and then I would get three different answers, which, number one, suggested to me that there was no one right way to do it, which was helpful in itself, and also, you know, gave me some sense of the universe of possibilities.

So the first year– I spent a lot of time the first year just sort of trying to figure out, you know, some of the mechanics of the job, because you have to figure out how you learn best, how you digest a case best, how you– what are the inputs that you need to make a good decision, because everybody learns things in different ways, and so you have to sort of figure out what are the processes that you need to put in place in order to make sure that you’re making the right decisions, casting the right vote, and then, of course, what are the processes that you need in order to write the best opinions that you can write as well, and to do all the other various aspects of the Court’s work. So a lot of it was trial and error my first year, and some things succeeded and some things failed, and then I would just do it differently the next time around.

But I would say by the end of the first year I had the processes pretty down pat. And then as each year goes by, you just learn more and more about more and more issues. I mean, the Court– you said in your introduction that I had written on a great variety of things. In some respects, you just have to. You know, your assignments is one day on some criminal case and one day on a Constitutional law case and it’s one day on a tax case and there is one day on an electricity regulation case, and one of the fun parts of the job is just to learn about a lot of areas of law that you didn’t know anything about to start with. So that even once you basically get the hang of being a justice down, the learning curve is still high because there is just so much that you, you know, didn’t know about so many subjects.

– DEAN RAYMOND: And that’s going to keep going for a while.

– JUSTICE KAGAN: You know, that’s going to keep going for a while and I hope forever. I mean, my predecessor, John Stevens, retired when he was 90 years old after having been on the Court I forget whether it’s 35, 40 years, something, you know, a long, long time, and one of the things he said was that he loved the job because he was constantly learning something new. And, you know, to be able to say that at the age of 90 after having served on the Court for almost four decades and to say, you know, but this week I learned this amazing thing, I mean, you want to be that person. Right? And partly it’s personality and the fact that he had a personality that was just always searching for new things, but partly it’s the nature of the job. You kind of can’t help but learn new things because new problems keep being thrown at you.

– DEAN RAYMOND: So you were a law clerk at the Supreme Court a while ago and then you were an advocate at the Supreme Court. Do those things equip you in any unique way to bring something to your job that may be special or that helps you do it better?

– JUSTICE KAGAN: Well, we were law clerks a year apart for the same justice, Justice Marshall, and one of the things that was really interesting to me when I got to the Court was that there was– and there was, you know, almost 25 years in between those two things, the year I clerked and the year I arrived at the Court, and here is the most surprising thing about the Court is that very little changes. That in those 25 years, I mean, other– I had to have my memory refreshed a little bit, but all the processes were the same, all the procedural rules were the same, the way the Court operated as an institution was largely– now, this is an amazing thing. It’s not just any 25 years. Right? This is the 25 years in which there was a communications revolution, you know, a technological.

Not really at the Court. So, I mean, to the degree even the people hadn’t really changed all that much. The justices had. The justices had. But on my first day on the Court– this is a digression. I’ll come back to your question, I promise– the Chief Justice took me around to all the various offices and introduced me to people, in the clerk’s office, in the legal office, in the publications unit, in the library, all of these different offices. And almost invariably there was someone in each of those offices who said, “Oh, I remember you from when you were a clerk.” And I’m thinking, oh, gosh, I hope I was okay, you know. One doesn’t really like to be defined by one’s 27-year-old self. But the Court changes very slowly, and so I think, you know, actually being a clerk was extremely helpful to being a justice, just in terms of the way the Court operates, the way the processes work.

And then being S.G., I mean, you know, all that the Solicitor General does is think about the Court. I mean, sometimes I think basically my job as Solicitor General was to persuade these nine people of a particular view, and the only thing that changed when I became a justice was that now I only had to persuade eight people. Right? But then, you know, all the S.G. does is think about the Court and think about individual justices and what their views are and how their views might relate to a particular case, and so it prepared me very well in that sense. I almost think that there is no better job, even more than an appellate judge in a circuit. You know, in some ways there is no one who thinks about the Court more than the justices, you know, than the S.G. does. Or as much as the justices as the S.G. does. The other thing, honestly, that being an S.G. has done is it makes you realize how hard the job of the people at the podium is. So, I mean, in general arguing in front of courts is difficult, but in front of the Supreme Court, it’s pretty much a nightmare, because you have a lot of very, very active people who ask a ton of questions. I would say in a 30-minute argument maybe 50 or 60 questions get thrown at you.

It’s very rapid fire, you have to have really thought through stuff before you get to 21 the podium. Often the justices aren’t really asking you questions. They don’t really care about the answers you give. They’re making points to their colleagues. I say this not in a pejorative way. I think– I do it all the time. I think it’s actually an important part of the process that we’re talking with each other up there, but it makes it extremely hard for the lawyers who, you know, really do want to occasionally interject some point. And so, you know, honestly, being S.G. just made me realize, boy, these people have a hard job, and, you know, to the extent that I remember to do so, I think it’s a good thing to realize, you know, let’s give these people a little bit of a break.

– DEAN RAYMOND: That being said, are there things you see in the performance of lawyers who are appearing before you that you either think, man, that was good, or, ooh, don’t do that?

– JUSTICE KAGAN: Sure.

– DEAN RAYMOND: Is there sort of good and bad news for the folks in the room about how to be a good appellate lawyer?

– JUSTICE KAGAN: Yeah. I’m not sure I could put it on a postcard, but absolutely. I’ll say first, we are so, so lucky. We have an extremely high caliber bar. One of the things that’s changed actually since we clerked there is that a lot of the arguments are done by repeat players who have been there before, who really know the Court, who know the process of arguing before the Court, who know what it is we like, who know what they should be doing and what they shouldn’t be doing. So in general we have really high caliber folks. And one of the things that seeing some really good lawyers tells you is that there is no single right way to do this. I was once coming back from a circuit conference, I think it was the Sixth Circuit conference, and there were two lawyers on my flight and our flight was delayed and we ended up hanging around and talking with each other for a long time about Supreme Court arguments. And these were two of the best lawyers that there were at the Supreme Court, but very, very different in style.

And one of them described it as one was a hot lawyer and one was a cold lawyer. Like one was, you know, he gets up to the podium and the place just, like, throbs with energy. Everybody leans forward in their chairs. He just– there is so much sort of tension and energy in the air, and then, you know, he’s just tremendous and sort of knocking everything out of the ballpark and arguing with you. The other is calm, cool, and collected as can be, and just sort of cools down the temperature of the room and is Mr. Reasonable Man and surely you have to believe everything he says because he says it in such a calm kind of way, sort of slow, you know. And they’re nothing like each other, but they were both– or are both tremendous, tremendous advocates. So a lot of it is personality, a lot of it is just what feels comfortable. But that said, so, you know, I guess a couple of the things is you’ve got to listen to the judges. You know, everybody goes up there and they wish they could repeat their brief.

And it’s hard not to. Right? I have these five great points that I need to be able to make. But the justices, we’re all very well prepared, we’ve all read the briefs, we know your five great points. We’re not really interested in your five great points. And the ability to sort of understand that, to say, you know, the judges, they’re asking you super hard questions and they’re almost always asking you questions that are at your case’s, like, weakest points and there is a tremendous temptation to just try to, like, answer that quickly and go back to what 24 you think the strongest points are. But, in fact, what you have to do– they know your strong points, they’ve read your briefs. What you have to do is really, you know, have the fortitude to engage the weak points and not to just sort of try to slough that off and go back to a place where you are most comfortable. So I would say that. I would say to treat the thing as a conversation.

There is no orating at the Court, nobody has any patience for it, nobody has much tolerance for it, but if you can get up there and treat us as equals, I mean, you have to be respectful to us, of course, but treat us as equals and get into a serious conversation with us about the law and the various fine points of the case, I think people really appreciate that. And, I don’t know, would you add anything else? What do you think?

– DEAN RAYMOND: Until I start my career on the Supreme Court, I’ll probably reserve my opinion.

– JUSTICE KAGAN: Okay. Well, those are the things that come to mind.

– DEAN RAYMOND: It’s hard to know how it looks from where you sit, but many of us today find our communities and our conversations increasingly polarized, angry, and fraught with conflict. Do you see a way forward to sort of mend some of the rents in our divided society and do you think the Court plays a role in facilitating some kind of comity in civil discourse?

– JUSTICE KAGAN: Well, I don’t think that– I mean, I guess there are not all that many people, I think, who don’t look at the place we’re in and see us as very divided on quite a number of issues and see the discourse as being pretty hot and, you know, often depressingly so. I don’t think that I have anything very useful to say about that in our general political system. I think I have thought about it with respect to the Court, because the Court is also an institution that people sometimes see, certainly can see, as divided, in some sense as mirroring some of the divisions that we see in our broader political system and in our broader society.

I think we’re doing a good deal better than some other institutions, but I think that it takes hard work and sort of an awareness of this issue, and I think we should be aware of the issue. I mean, look, we have a job to do and the job is not to model civil discourse for other institutions or for society generally. The job is to decide cases, and you have to– that’s your principal job and you have to decide cases as best you can and– you know, as opposed to sort of saying, you know, let’s be the sort of, like, model for other governmental institutions. But I think that there are times when you can decide cases responsibly, consistent with your Constitutional responsibilities in ways that also reflect some awareness of the dangers of division and the value of consensus and collegiality, and where you can, you can’t always, but where you can, compromise. And those are, I think, important things for the Court to think about, how we can achieve more consensus, how we can be more collegial, how we can compromise out some issues that at first seem impervious to compromise, how we can reach some common ground even where you originally thought that there was no common ground possible.

And in some ways we’ve had to do that the last couple of years. So the last couple of years, after the very unfortunate passing of my colleague Justice Scalia, in really the better part of two terms for the Court, we’ve had an eight-person Court, and that meant that there were some fair number of times when if you just sort of, like, did things without thinking about consensus and compromise, you would find yourself stuck in a four-four tie, and none of us wanted for that to happen very often, because it would look as though we were a riven institution and it would look as though we were incapable of getting our work done. And so I think we all made a very serious effort to try to find common ground even where we thought we couldn’t, and it sort of forced us to keep talking with each other. Right?

You know, when you have a nine-person Court, you can just say, well, we have a majority and then there is a minority and that’s the end of it. But with eight people, sometimes you can’t say that. Sometimes you’re split and the only way you can get unsplit is to keep talking and keep talking and keep talking some more and to find some way of reshaping or reframing a question or reframing the debate so that finally you can find common ground. And we had to do that a bunch in the last two years. And the consequence was that we talked with each other more and that not infrequently we found ways to reach agreement which we wouldn’t have expected when we started the conversation. I think that that is the silver lining of the two years with an eight-person Court, and I’m actually hopeful that the effects of it will continue now that we have a nine-person Court in the sense that, you know, all of us will remember not to stop the conversation too soon and all of us will remember the value of trying to find a place where we can agree or where more of us can agree.

And, you know, it doesn’t always work, you know, sometimes it’s not going to work, sometimes the only way to reach greater agreement is to answer a question nobody cares about answering, and, you know, sometimes people are going to say, look, we’re divided on this but it’s more important to actually solve the problem, divided or not. But I’m hopeful that as we go into the next term and the next term and the next term that some of these Habits of Mind that I think we sort of developed over the last two years will continue and that people will remain alert to the values of sort of, like, keeping talking and finding areas of agreement, consensus, compromise, which weren’t completely obvious at first.

– DEAN RAYMOND: Will it change how you write? Is it harder to sit down and write the angry dissent when you know there is a little bit more work you could do to move in a sort of more conciliatory decision?

– JUSTICE KAGAN: I think it has changed the way we’ve written in these last two years. It’s changed majorities and it’s changed dissents. Right? Because, you know, the majorities tend to do less so the dissents don’t have quite the same kind of thing to complain about, maybe there aren’t any dissents because we’ve reached complete consensus, maybe there are, but the majorities have tended these last two years to do less, and so there is not the kind of anger on the other side. You know that I’m speaking in generalizations now and there are exceptions to that, but I think one of the– I mean, one of the things that the eight-person Court has done is, you know, to change the way we’ve dealt with each other, to change the degree to which we’re trying to find some areas of common ground, and the result of that is, in fact, to do less. And sometimes you have to do more. It’s not– you know, doing less is not invariably the right answer, but sometimes it is. And when you do less, there is less anger.

– DEAN RAYMOND: So you mentioned losing your colleague, Justice Scalia, but what that also means for you is that for the first time the configuration of the Court you’re on has changed, that you have moved out of the junior seat and you have a new colleague. What does that feel like to sort of shift the sort of status quo of how things have been for a while and have them changed?

– JUSTICE KAGAN: Well, can I first answer that question at the most, like, prosaic level? Because it means that I don’t have certain responsibilities. Because there are certain jobs that are only the junior justice’s. So what are they? The first is you have to take notes in conference so that you can then pass on all the decisions that we– because nobody comes into the conference room other than the nine justices. Nobody from the clerk’s office, none of the justices’ personal clerks, nobody from any of the offices around the building. But they all have to know what we’ve done so that they can report it to the world, so that they can do all the various administrative things that need doing. So it’s the job of the junior justice to kind of take good notes and to be able to report to everybody what it is that we’ve done, and literally at the end of conference everybody gets up and leaves except the junior justice, and the junior justice stays behind and all the justices ‘chairs are then taken up by people in the clerk’s office and around 31 the building who needs to have this information, so that’s the first thing. That’s actually the most substantive thing that the junior justice has to do, believe it or not. The second thing the junior justice has to do is open the door. Now, you wouldn’t think that this would be an assigned task. Right?

– DEAN RAYMOND: Life tenure required.

– JUSTICE KAGAN: Exactly. But, as I said, there are only the nine of us in there, and occasionally somebody has to give us something, like suppose an important phone call has come in or, more often, suppose somebody left their glasses in their chambers or left their coffee or just can’t do without some particular file. And so they’ll make a call from the conference room and somebody will come and knock the door, and the door is a very– you would think it’s just a door, but, no, it has to be two doors, it’s like a double door with a few feet in between so that really nobody can enter the inner sanctum. And the person who is bringing the cup of coffee or whatever will knock on one door, you’ll get up, you’ll open the other door, take the cup of coffee, deliver it to your colleague. This is– Can I tell you how seriously people feel as though this is the job of the junior justice? This is the best way I can describe it to you. Earlier this year I tore something in my foot and I was walking around with one of these boots, you know, and I was walking but I wasn’t walking easily because I was, like, clumping along with one of these big plastic thingamajigs on your foot.

And still, somebody would knock on the door, and everybody would just look at me, you know. So now it’s not my job anymore. But still, after seven years now, so the last month, somebody would knock on the door and I’d go like this (flinches). It’s some kind of conference joke, like how much Elena flinches. Right? The third thing that the junior justice has to do is to be on the cafeteria committee. Now, this truly is a form of hazing. Right?

This is like you are the person who one of your colleagues says there is too much salt in the soup and you’re supposed to report that to the cafeteria. And then once a month or so you go to cafeteria meetings. And you think, you know, here you’ve just been confirmed to the United States Supreme Court and you think you’re hot stuff. Right? And I think this is the reason why they do this. You think you’re hot stuff, and they put you on this cafeteria committee and you are sitting there and you are having a conversation about what happened to the good recipe for chocolate chip cookies. So I don’t have to do that anymore either. So I’ve got all of these– yeah. But here is the thing, I liked being a junior justice. I’ll tell you why.

Not because I loved being on the cafeteria committee, although it is a very deans kind of, you know, thing. As a dean you are very used to thinking about things like cafeterias. Right? So I actually, I had quite the success on the cafeteria committee. Like I figured, like, if I were approaching this as a dean, I need a signature item, and I decided that the signature item was a frozen yogurt machine. And still seven years later people are thanking me for the frozen yogurt. But here is why I actually liked being the junior justice, why I miss it a little bit. I love– So the way the conference works is that the Chief Justice starts off, he kind of defines the issues, he tells you what he thinks. All the comments, all the votes are– can be reversed, they’re tentative, but, you know, you’re committing to something, so you say here is the issue and here is the way I think about it and I vote to reverse. 34 And then it goes around the table in seniority order and nobody can speak twice before everybody speaks once, and so the last person in the more formal part of the conference proceedings, I mean often there is an informal conversation that breaks out afterward, but the last person in the more formal part of the proceedings is the junior justice.

Now, if I had to choose between being first and being last, I would be first. But last is a much better position than eighth or seventh or sixth or something, because last gives you the ability to kind of listen to everybody, to try to draw some conclusions about the whole ball of wax, to try to think about where the fault lines are, to try to synthesize certain views and thoughts, and to sort of do a little bit of a wrapping up, but more than just a wrapping up, sometimes to try to move the conference, all of whose views have now been heard. And I thought it was, you know, other than being maybe first or second or third where you can really define the conversation a little bit, it was the best role to be in. And so this last month I’ve, like, said my piece and I’ve sort of thought, Okay, that’s, and then somebody else starts talking. And it’s been very discerning, actually. It’s like, why is somebody else talking, you know. I just wrapped up. So I sort of miss that, actually.

– DEAN RAYMOND: So there is a movie Men in Black, you know, Agent Zed says to new Agent J, “Time to put it on, the last suit you’ll ever wear.” Supreme Court justices don’t usually leave for other jobs, they often don’t retire. You’ve done a lot of different kinds of work, and my sense is that’s been a source of great joy and satisfaction for you. How do you feel about having life tenure and what is likely to be the last job you’ll ever have?

– JUSTICE KAGAN: Well, it’s a good thing that this is a good gig. Because you’re right. I mean, in general I have had a lot of different jobs in my career and that was one of the things I liked, and, you know, different people like different things in this respect. Some people, like, find one job and that’s where they’re happy always, but I sort of like the fact that I sort of bopped around a lot and did a lot of different things and felt as though– I guess I always felt as though when the learning curve started flattening out, it was time to find a new job, because I like a little bit sort of doing something completely different and feeling as though the learning curve is almost vertical and the challenges that that creates, and it’s absolutely right that I will never have that again. Right? That the job is the job and this is a job I have committed to. But it does not, I have to say– I mean, you’re right that I’ve always lived with a certain kind of variety, but this does not seem like a sacrifice. I mean, first off, it’s just it’s an incredible responsibility to do this job and you have to approach it and keep on approaching it with an awareness of that responsibility, that for whatever reason you’ve been put in this place, which does have an enormous impact on the development of the law, and the development of the law means that it has an enormous impact on the way our country goes and the individuals within our country, and so I think, you know, whatever– whether you find it, like, Oh, I feel like doing something new, or not, you know, too bad at some point.

I mean, this is a serious responsibility and you should treat it as a serious responsibility and give it your all every year, you know, until you have to stop. But I don’t want this to be like this is, like, a big sacrifice, as I said, because this is the world’s most interesting job if you’re a lawyer. Right? I mean, if you were going to land in one job and somebody said, “Well, you are going to do this for some number of decades,” I mean, for me, this is the job I would pick. And it’s an incredible privilege to be doing it and also, not on every day, but on most days, an incredible joy, and so no complaints here.

– DEAN RAYMOND: I think we’re out of time. Please join me in thanking Justice Kagan for the amazing hour.

– JUSTICE KAGAN: Thank you very much.
[applause]