2019 Stein Lecture: U.S. Supreme Court Justice Elena Kagan

please welcome to the stage the University of Minnesota's President Joan ta gable good afternoon everyone and welcome to the University of Minnesota and the 2019 Stein lecture this annual lecture is a highlight on our University calendar and we're honored to have US Supreme Court justice Elena Kagan with us today we're also pleased to welcome our distinguished guests including members of our Board of Regents and a special welcome to Professor Robert Stein and his family who will be out soon thank you all for being here with us today justice Elena Kagan is one of the foremost legal minds of our time a leader and a trailblazer driven by a commitment to excellence discovery and diversity of thought from the upper reaches of higher education government and the law Justice Kagan has demonstrated that a life of purpose and service to others not only makes our nation better and fairer and more just but can change history the lives of countless students and citizens have been shaped by the ideals she holds and the example that she embodies Justice Kagan on behalf of the entire University of Minnesota community I thank you for visiting us and I welcome you [Applause] and now it is my pleasure to introduce the distinguished leader of our University of Minnesota law school dean gary jenkins thank you good afternoon and I want to thank all of you for coming here to help us welcome Joan gable to our law school community it's a thrill to see this auditorium filled to the brim it's my enormous pleasure and privilege to not only welcome our Regents but our distinguished guests from the federal and state judiciary are great in many University of Minnesota students faculty staff as well as many alumni and friends to this terrific conversation between our own professor Robert Stein and our honored guests associate justice Elena Kagan before I introduce our guests a few housekeeping matters first please make sure that all cell phones are turned off and put away this means no tweeting no texting until we're done this is an opportunity to bring your whole self to the occasion second please note that this session is being recorded it will be rebroadcast on the web and is open to the media and third finally after we conclude the conversation please join us in the lobby for some light refreshments now as president gable mentioned this stein lecture series which brings prominent jurists and policy makers to the law school and the university was established through the philanthropy of Professor Bob Stein and his wife sandy and I want to thank them for their vision and for their generosity let me tell you a little bit about our into locket or for this conversation who's been affiliated with Minnesota law for more than 60 years when he started as a 1l Bob Stein class of 61 is the Evert Fraser professor of law and he joined the faculty 55 years ago and his work as a scholar leader and his impact on the state and the nation professor Stein truly embodies and reflects our mission he is a nationally recognized scholar and teacher with a focus on trusts and estates and rule of law he also served as a vice president of the university Dean of the law school for 15 years and led the American Bar Association serving as its executive director and CEO for 12 years before returning to the law school 13 years ago he is also an esteemed commissioner from Minnesota to the uniformed law Commissioner to the uniformed Law Commission and was its president from 2009 to 2011 today professor Stein will engage in conversation with someone who probably doesn't need much of an introduction I'm talking about my friend US Supreme Court justice Elena Kagan earlier this month she began her tenth term on the court finally proving that she could hold one single job for more than five years in her nearly decade of service on the court she has become known as a major intellectual force an eloquent precise and vivid writer and the courts master of pop culture I don't think any other of the 113 justices throughout history have referred to spider-man in an opinion other than her but she's also proven to be an effective strategists and coalition builder an influential leader on the court and we shouldn't be surprised by any of this her brilliant mind coupled with the great training and a deep commitment to law leadership and service provided the building blocks for the success and influence we see today a graduate of Princeton Oxford and Harvard Law she wrote her Oxford thesis on the jurisprudence of the Warren Court someone with whom she shares many talents after law school she clerked for two of the greatest legal minds of the 20th century judge Abner Mikva of the US Court of Appeals for the DC Circuit and then for Justice Thurgood Marshall on the US Supreme Court then she worked for leading Washington law litigation boutique and then she became an acclaimed legal teacher and scholar who taught at the University of Chicago and Harvard Law School even now administrative law scholars are still grappling with her path breaking scholarship especially presidential administration which is unquestionably part of the subjects Canon all along Justice Kagan has maintained a lifelong commitment to public service ultimately working in two different White House administrations as a legal and domestic policy White House aide and as a superb Solicitor General that's the federal government chief lawyer representing the American people's interests before the court but reports are that even in her high school yearbook she was thinking about service there may or may not be a picture of her dressed with a robe and a gavel back then and of course as leader on the court she most certainly draws on her years of experience and what is far in a way the most challenging role in all of law and all of the lack all of academia that of Law School Dean in that position she became one of the most successful and beloved Dean's in Harvard Law School history serving from 2003 to 2009 today she brings all of her experience as Professor Kagan as general Kagan as Dean Kagan to bear in her work now as Justice Kagan as the sole Supreme Court just disappointed in nearly 40 years who wasn't a judge before arriving at the court she brings a freshness a boldness to her writing style as well as a connection to law as it is on the ground in legal education we talk about blending theory and practice and on the court Justice Kagan is the embodiment of the blend of theory and practice she is both problem solver and scholar open-minded and tenacious meticulous with detail and mindful of the big picture using her skills with both the pen and people she's reaching across divides modeling thoughtful listening persuading others building people's trusts doing what great lawyers and great leaders do I know we all look forward to hearing her thoughts so thank you Justice Kagan for honoring us with your visit please join me once again and welcoming justice Elena Kagan thank you thank you [Applause] thank you very much welcome justice kagan teammate to B University of Minnesota yeah delighted you're here is this your first time in Minnesota it is not my first time in Minnesota I had an aunt and uncle who lived out here so I took various trips to family events and so forth oh good well we're glad to have you back you've been on the court now for nine years what do you enjoy most about being on the Supreme Court hearing introductions like that really I feel like we can just call it a day and go home now there are a lot of people here my gosh Wow [Applause] this is actually one of our bigger classrooms well I'm honored so thank you truly my favorite thing did you say or what our most enjoyable things no don't you know the whole thing that's a pretty good gig a it's it's hard not to love the job if if if you love doing law it's every day really hard legal problems are presented to you and you're surrounded by colleagues who are phenomenally good lawyers and good people and and the opportunity to sort of think through those problems and consider how they might be solved in a way that will best advance the rule of law and will ultimately serve the welfare of the American people is you know it's a it's it's a responsibility it's a privilege but it's also a whole lot of fun good well you thought about the Supreme Court when you were on the University of Chicago Law School faculty and again on the Harvard faculty is the Supreme Court which you thought it was when you thought about it or is it different you know what weighs well I felt as though I was pretty prepared to be there that I had seen the court from a number of different vantage points I had a year exactly right I had thought about it and and written about it as a scholar but they were also clerked on it that you know one of my first jobs out of law school was clerking on the Supreme Court as was said for Justice Marshall and then I had been Solicitor General and Solicitor General is sort of the closest thing you get to be in one the court sometimes the Solicitor General is called the tenth justice although often I really felt like the 37th Clerk but but it's it's it's what the Solicitor General does is really think about the court all the time so from all of those different perspectives I thought that I had a pretty good understanding of the court and how it functioned and who was on it and how they thought but of course the one thing you don't say the one thing that nobody sees is what happens in the conference room what happens behind closed doors how the court actually makes decisions and that's it's the sort of black box that that nobody sees because clerks aren't allowed into the conference room no other court employees are allowed into the conference room for that matter laptops aren't allowed into the conference room it's it's you know the nine justices sitting around the table talking and that's the thing you you can't as somebody whose thought about the court you know all my professional life you kind of want to be a fly on the wall and then you're in there and and I think that the fly would be pleasantly I don't know if he would be surprised but but I you know I mean you see the court actually doing its business and it's Manan extremely high level and with a great deal of collegiality but also a lot of engagement and vigorous debate and it's it's actually an inspiring thing to see I think how one of our governmental institutions works and works well great well as dean jenkins mentioned the other eight justices on the court were judges of courts of Appeal before they were appointed to the court and you haven't served on a court of appeal all those you mentioned you were the Solicitor General at one time and in fact President Clinton nominated you for a seat on the DC Court of Appeal but the Senate Judiciary Committee didn't get around to holding a hearing on that one it's not to be but how would you compare your background as a well the Solicitor General is a very important part of it but as a loss professor and Dean as compared with the other justices who have had prior judicial experience before being there yeah are there advantages and disadvantages of each approach would you say yeah I'm not sure it made all that much of a difference I mean there were some things that I had to learn that my colleagues did not have to learn on their first year in the job and and some awfully prosaic sounding things but important just because they had all sort of figured out the figuring out how to I think learning to be a judge is really sort of learning about how you learn best because you have to think through these cases and come to a decision on them so it's like well what do I need to do that who-who do I want to talk to to do that what do I need to read to do that when do I need to read it how do I want the the opinion writing process to work what do I want my clerks to do in that process what do I need to do in what order do I do things all of the kind of prosaic things that allow you to do the job and you know my colleagues sort of had down and I spent my first year learning those things and trying to figure out what made best sense to me so I had four law clerks as we all do and three of them had already clerked on the court before one had clerked for Justice Ginsburg one who clerked for Justice Kennedy one had clerked for Justice Breyer and I would sort of come to these moments of decision-making then I would say well how did just how did how did your justices do this and each of them would say three entirely different things I know and then I would say well that one sounds good and we would and I would pick one and then we would do it and I would think that is insane why would any person so there was a lot of trial and error in the first year just in terms of the way I did the job and in but but you know honestly in terms of what I the legal knowledge that I brought to the job I'm not sure it it mattered all that much I mean the Solicitor General is great preparation for the Supreme Court and then as a as a scholar and a teacher I had always focused on the areas of constitutional law and administrative law which is a great deal of what the court does so I never felt at all as though I was at a disadvantage of any kind in terms of the legal knowledge that I had but at the same time I wouldn't go so far as to say oh I brought a fresh new perspective you know I actually think that I brought about the same things as all my other colleagues brought to the brought to the court but and that would be different for for somebody you know I think when people talk about maybe the court should have you know different kinds of people on it you know often they talk about people who spent their lives in politics or something like that I mean that would be a different kind of perspective and a different sort of person I suspect but I thought not so much for me other than the sort of trial and error of my first year it didn't make all that much difference so that's great let me ask you a little bit about the collegiality on the court and dissenting opinions sometimes that is something you put those two together collegiality and dissenting it well there they intersect at one point sometimes the dissenting justice can be a little sharp in a dissent and does they known it to happen does that even known that I'm you know known to write descendant opinions like that yeah yeah at this point we're not naming names but they don't know me I'm saying me so yeah but just another justice writes an opinion that criticizes your thinking in a case does that in any way put a strain on your personal relationship my friend Justice Scalia who has also been known to write a few sharp dissenting opinions in time actually had him in mind what I was asking but I'm a few of those myself I think I give as good as I get but my friend Justice Scalia used to say that if you take any of this personally you're in the wrong business and I basically agree with that and what's more I think all of us do I mean the public does see us at times I hope not name-calling and I hope not engaging in any ad hominem attacks but certainly questioning shortly eats each other is logic each other's analysis each other's views and you know it might seem as though well how can those two people go off and you know have a friendly conversation together but we we we do every day I mean we we believe in what we do and you know sometimes maybe we step over a line but I think that the whole idea of dissent writing is so that there can be an alternative view put forward and that alternative view should be as powerful as you can make it again you hope that you're not saying anything that hominem or saying anything personal or nasty but but in terms of you know the the person you should want to write the most persuasive argument you can about why the majority has gone wrong and but I think everybody knows that because everybody has been in that position and so then they know what it is to write that to write a powerful dissent and they know they're going to do it and so when when they write the majority in someone dissents against their majority opinion it's it's just it's just part of the job and part of the enterprise of going back and for and members of the court putting forward the most persuasive powerful opinions that they can as long as Justice Scalia's name has come up but let me just push that a little further you and he had very different judicial philosophies and yet I understand you had a great friendship in fact the story is that you went hunting with him is that true and did you talk about the Second Amendment when you were hunting well it is true we were here I thought of him as a great friend I had gotten to know him before I got on the court he was I was Dean at Harvard Law School and he was an alumnus of Harvard Law School and that's principally how we got to know each other and then when I was Solicitor General I used to really love arguing to him at the court he was a fierce questioner as he was a fierce writer but he was also an extremely fair questioner so that you know he would put a question to you when it was often a question at the very heart of the case you know he would always sort of pick the weakest link in your chain of argument and and he would push on that but then he would give you a real chance to respond and he would engage your response in a very respectful way I thought and I used to love going back and forth with him when I was Solicitor General and then this hunting business came about in a rather odd way so I'm from New York City we don't really go hunting on the weekend but when when I was nominated to the court by President Obama I found that this was something of a problem because in addition to the the televised confirmation hearing that you all see that there's a there's a big process before that hearing which is that the nominee goes around and makes courtesy visits they're called and they go from office to office to office to office in the Senate and meets one-on-one or sometimes with staff with each senator and the senator can ask whatever he or she wants but the Senators know that they can't ask well how would you come out on a particular case they sort of get the rules the ethical rules that apply to Supreme Court nominees so they try to sort of measure you engage you in less obvious ways and for me I think what a lot of people were thinking about the the questions that I got more than anything else by far and both from Republicans and from Democrats were questions about what I what I thought about the Second Amendment but they can't really ask what you think about the Second Amendment so they find these kind of proxy ways to ask the question so they would say have you ever hunted is anybody in your family hunt any of your friends sons have you ever held a gun you know you know and I would be pathetic on all of these questions so so I'm sitting one day with a senator from Idaho who shall remain nameless but there were only two of them and he was telling me about you know he did a lot of hunting he owned a ranch he hunted on this ranch and was talking to me about the importance of this to his constituents and and I said to him and this is you know was the truth I said you know senator I said I really I do very much understand why you're asking me these questions and if I were you and I were if I were your constituents I would want to know whether I understood the importance of these issues to them too I said you know unfortunately my my background I've never done any of this I said but I would like to invite me hunting on your ranch I would love to come and this look of abject horror came over and you know there's this White House staff member who was sitting on the couch with me and is holding her head in her hands and so I thought okay probably went too far on that one got a real this one back in and I said listen senator I didn't really mean to invite myself hunting with you but I'll tell you what if I'm lucky enough to be confirmed I promise you that I will ask Justice Scalia whom I knew at that point to be an avid hunter I'll ask Justice Scalia to take me hunting and when I got on the court I went to Justice Scalia and I told him this story and Justice Scalia who has a fantastic had a fantastic sense of humor laughed and laughed and laughed and he said let's go and he brought me out to his gun club and he and one of his sons-in-law who was a great shooter taught me how to shoot and taught me all about gun safety and and then Justice Scalia had these hunting buddies whom he used to go bird shoot in without near Richmond Virginia and you know a few times a year I would go with them so you know I you know I went with them and I found I liked it it was just once ya know I you know a few times a year for my tenure once we went to once we went to Wyoming to hunt big game well and once we went to Mississippi to hunt ducks and that's a side of you that doesn't you know widely No oh yeah well there you are but it was great too because you know I did I really it was it was I'm you know I just loved him to death and it was an opportunity for us to talk with each other about things that we're not at all related to the court and you know you said like how do we do this how do we disagree with each other and then become good friends and we are you know the court has lots of friendships like that and I think partly it's because I mean there are only eight other people in the world who really understand what I do and so two for each of my colleagues and that is in itself a kind of bonding thing and and and and so genuinely I think we quite like each other I heard you say earlier today when we you taught a class of students in the law school and met with faculty but you talked about the two most recent departures from the cord one was Justice Scalia whom you just indicated your great affection for but you also mentioned the year a great respect for Justice Kennedy would you like to comment about how important he was to the court yeah I mean I miss him enormous Lee in our conference room he brought such class and dignity and graciousness to everything we did he is a supremely decent and kind person he had a really interesting and principled take on the law which was all his own and and he and you know he just respected he respected everybody and everybody respected him he was just a he is a person he is a person of a real grace what if I just follow up one further on dissents you took an unusual step in the last term in the political gerrymandering case to actually read your dissent from the bench that's not common and that's we have a few questions about that one why did you read it from the bench have you ever done that before and how often is it done by any justice yeah I mean it's not common but it is done every year there will be a few dissents that are read from the bench and usually in the few most important cases it was the third time I had done it in nine years I did it actually in my first my very first year and then in a in a campaign finance case and then I did it two years ago in a in a case that in which the Supreme Court overruled an important decision involving labor unions and then I did it last year with respect to partisan gerrymandering where the the court said that the judiciary could not get itself involved in partisan gerrymandering but that was a political question and the judiciary couldn't play any role in it and I wrote a you know a pretty strong that was wrong yes as saying that the court was not performing its constitutional duty of policing the outer bounds you know policing the the constitutionality of what politicians were doing in forming districts and and you know what's an important issue for the country I thought that the court had gotten it deeply wrong and when both of those things happen when an issue is important for the country and when you think that the majority has just made a very wrong turn I think that's the time when you sort of take this symbolic action of it's not really reading the whole dissent from the bench if I had read the whole dissent from the bench we would have been there the whole week but but but reading the kind of summary of it that was a fight for decision you wrote for the four letters in that case when you take that step like that to the other justices who've signed on to your opinion sort of commend you for for doing that or don't they I don't think it's a question of commending I think if I hadn't done it in that case my other the other my other three colleagues would have sort of said what why not I mean it was a pretty obvious case in which to do it and I think for the most part the times when people do dissent from the bench they those are pretty obvious cases and you know I've been on both sides of those I've read my dissents and I've had a sense read back to me and and and usually you know they're the kinds of cases where you can just expect that that will happen that it's an important matter that it's a matter in which people feel strongly and people feel as though the majority has gotten it really wrong let's turn to another subject you're one of three women justices currently on the court and the fourth woman ever to be serve on the court in American history can you talk about the importance of having women justices on the court and do you feel that you bring a perspective in a case that's different than a male justice might bring you know I think it's important but I actually don't think that there much of a female perspective so I guess I'll say a little bit about the second and then I'll come back to why it's nonetheless important I mean women come in all varieties and you know you can find women all over the legal spectrum in terms of their political excuse me in terms of their judicial philosophy in terms of their theories of interpretation you know in terms of anything you want and so I think in ten years nine years as a justice and then a year as Solicitor General I've only seen one case in which you could see that there was a kind of male-female divide that really did have something to do with experience and that was the case it was it happened before I got on the bench but when I was Solicitor General and I was in the courtroom listening to arguments and it was a case about a 13 year old girl junior high school who had been stripped searched for on suspicion of possessing drugs and had been stripped searched by male school administrators and as you were watching the argument you could tell that Justice Ginsburg who was then the only woman who was serving on the court was kind of you know was the way she was talking about this case it was like she was seeing pictures in her head of what had what had happened and how this would affect a thirteen-year-old girl and and I have to say that some of her male colleagues do not have the greatest day of their lives but they were kind of it was like they were joking about it and laughing about it in a way that would and then you just I mean it really was you know there was there was one person up there who can kind of imagine what it meant and some others who were not doing so well in the empathy Department that day but one has to say they the court went back this was widely remarked on in as this when this case was argued but the justices they went back and who knows what happened behind closed doors but they came out the way that Justice Ginsburg wanted them to saying that this was an unconstitutional search and and and I you know I tell the story but I really do think it is the rarity I literally cannot find another example of that in ten years a case where I just thought that the sort of the the the different people's experiences were were produced in a really you we're responsible for a real divide in opinion I think for the most part you know women divided on legal questions and pretty much the same way that men divided on legal questions and so I don't think that that's really the reason to have women on the court I think the reason to have women there and the reason to have diversity of all kinds you know has to do with the court having the respect of the American people and having legitimacy in the American people's eyes and I think to do that it helps that the court looks like America in in in in various ways and I mean I think about this sometimes cuz I see there are a lot of school groups that come to the port and you look out and there are you know these elementary school groups and junior high in high school and you think it's a kind of a great thing that that all the girls in in the school groups but also all the boys in the school groups are seeing three women all of whom the three of us me and Justice Ginsburg and justice Sotomayor are very active on the bench we're not shrinking violets and it's kind of a great thing to see that women can do these jobs and can participate in in a really active way and and I think that that's true of all kinds of diversity issues that that it's good for people to see role models up there but it's good for people to see an institution that represents people like them and that it it helps the court to have real legitimacy in the eyes of the American people you know it's wonderful statement that you just made and let me jump to a question I was going to ask you later but I think it's somewhat related these are very polarized times in our country right now and many people feel the court is just another political institution and presidents put on justices to do what they want them to do and what do you think the court can do to minimize that perception of the court and do you think those kinds of attitudes constitute a threat to the legitimacy of the court after all the court doesn't have a purse or an army it depends upon public trust and confidence it does depend on public trust and confidence and and and and that means people believing that the court is not acting like just another political institution that's not what we're there to do I mean nobody elected us we have to be seen as doing law which is distinct from politics or public policy and to be doing it in a in a good-faith way trying to find the right answers and and I think you're right that there that there are aspects of what we do that people can see as partisan it is it is the case on this court that that that some of our views about how to do law some of our views in particular about constitutional interpretation are are pretty divided and presidents of different parties have learned how to pick people whose legal theories correspond with maybe their own view of politics and public policy and so sometimes it it can look that way to the public that the court is just sort of re performing the same political divisions that they see in other areas I think that that wouldn't be so but I think it behooves us on the court to to realize that this is a danger and and make sure that it is and so so I guess I think it isn't so but it's a it's a real oversimplification of what the court does we we decide about 80 cases a year we decide about half of them unanimously these are some of the most difficult legal issues in the country they're all issues on which lower courts have divided have come have thought that different points of view work we're correct and notwithstanding that we decide about half the cases unanimously another I don't know 35 percent or so by lopsided votes or by very scrambled votes votes that don't follow anybody's idea of political affiliation or anything like that but but you know there are sometimes some cases in some cases on important hot-button issues that people feel strongly about where I have over the years I divided along what might be thought political lines in other words that justice is nominated by Democratic presidents have thought one thing and justice is nominated by Republican presidents have thought another and I think that in everybody nobody's doing it for partisan reasons nobody's doing it for political reasons but we just have different views of how to think about certain constitutional issues our legal theories and interpretive methods are different and I think when we deal with those kinds of cases and I know I'm not the only person on the Supreme Court who thinks this we have a special obligation to try if we can to to reach some kind of agreement even if we can't agree on the whole thing and lots of times we won't be able to sometimes we can break off a piece of the case we can find some common ground usually it's by making big cases smaller and then finding a place where there's room for consensus and agreement and and that's often a very good thing to do to prevent these kinds of you know five for political seeming kinds of results now sometimes you can't do it sometimes the question just has to be decided and there going to be five people on one side and they're going to be four people on the other side and there's nothing to do about it but I think especially in these polarized times I think we have an obligation to make sure that that happens only when we truly truly can't help it and that we work very hard to try to find some greater consensus and to try to find some some common ground I think you mentioned earlier today that you I thought the court many your colleagues and you felt a special responsibility to do that during the time there were only eight justices after Justice Scalia yeah I didn't so you didn't want to have a equal division on a number of cases right because what happens when you have an even number of members on the court and it's a tie vote is you do something called you affirm by an equally divided Court which just means that the lower court decision stands because the court has no way of dealing with the problem and when Justice Scalia died I think all of us did not want the court to look as though it was it was the better part of two full Supreme Court terms just because of when he died in and and how long it took for the next justice to come on and and none of us wanted to look paralyzed I mean we wanted the institution to continue to function and during those times we we worked especially hard not to just end up in tie votes and we just kept on talking to each other and sometimes we were able to persuade each other and sometimes it wasn't quite that we were able to persuade each other but as I said before we figured out a way to recast the issue or to break off a piece of the issue so that even if we couldn't agree on the whole thing that was presented to us we could agree on some part of it and and sometimes that's a useful thing to do you know you're not going you're not solving everything and there's still things that are left to be decided but you've managed to make some progress to decide something and to do it in this way that that managed to achieve some consensus but the problem is of course when you have nine justices again on the one hand you've like learned how to do that you've spent a couple of years really talking with each other and batted things back and forth and finding creative solutions to problems even when you thought you couldn't but on the other hand now you have and now you got the person and and you you know you take your votes around the table and you have a majority so why are you keeping on talking right but I think it's a good thing I mean I I like to think that all of us who engaged in that effort learned something from it and that we continue to use what we've what we learned and that and the it will help us to achieve greater consensus in the future and you know if you look at for example last year's Supreme Court term I think it would be very hard to tell a story of a politicized court the five four cases that we had were 5-4 in all kinds of different ways often with lots of people doing unexpected things and so I think it would be hard to tell that story but I think you know that's good I mean if it were ever not hard to tell that story that's when the court would have a problem well it was interesting term I think there's a tendency sometimes in the media and other commentators to just sort of I think it's sort of sometimes sloppy thinking just lump all the justice into two categories and assume there that's where they'll be and they come out in a lot of different ways and many of the opinions so well I think I'm not going to go along with your aspersions on the press we actually have a great group of Supreme Court you do have reporters yes you do so so I think that they do a very good job but but for sure sometimes people can be you know can think that they have us all figured out and then they don't have us all figured out at all let's be a little bit lighter subject you wrote an opinion in Kimble versus Marvel Entertainment and at the heart of that case was a patent for us fighter men toy I think the Dean was referencing that in his introduction and you had a lot of fun writing the opinion for the court with numerous references to spiders spiders men I think you I think you referred to the web a precedent that you had to deal with in that case talk about the commentary that you had on that opinions that's your favorite opinion you know I don't have a favorite opinion it's like you're not supposed to have a favorite child you know it was it was it was a great opinion to write it was it wasn't like all these references to Spider Man were gratuitous it was actually what the case was about was was this as you put on this glove and then you could shoot webs out of your finger you know so we had this little toy in our office and my clerks thought it was highly amusing to shoot these fluorescent green webs out of their their their their fingers it was it was a and I did have some fun with it I there were a lot of puns in that opinion and I think the opinion ends with the line something like with great power comes great responsibility my older brother was a real spider-man fan when I was growing up and I would like to say I owe it all to him you know but but it was actually it actually was a serious opinion it was its opinion about the importance of precedent because there was it was a patent case the question was whether the patent owner deserved to be the patent owner in brief and in simple terms and it was it was it was a case there was this very old legal doctrine that the Supreme Court had come up with about 80 years earlier maybe maybe a little bit less 60 years which gave an answer to this question but in the in those 60 years that had been very roundly criticized by all kinds of people including by economists who thought it was it rested on really false economic premises and there was nobody really on the court who was willing to stand up for the doctrine in the sense of like if if if this came to the court for the first time today I would decide at the exact same way I think kind of nobody believed that either you weren't quite sure or you thought you'd probably or you thought you might rule the other way but there's an important principle in the law which called story decisis Oh kind of you know let the decisions stand which says that sometimes it's more important that matters be settled than that they be settled right and that there is a great virtue in systems in legal systems of of stability of predictability it said that people can rely on the law so that people don't think that the law changes to go back to your last question just because some new justice has come on the court and all of a sudden the law can flip and say X when before it was not X and so and and and these principles are very important in the law and it was it was really a question of how much force we were supposed to give to the the values of predictability and stability and and settles nests even when we thought that a decision might be wrong and the decision said you're supposed to give those things a lot of value and and we stuck to the old the the old doctrine and we basically said story decisis actually owned is is a doctrine that only has force that only has meaning when when when when it comes to wrong decisions you know if that's why you just decided it right again exactly right so so it was it was it was really interesting decision to write because it forced me to think through my ideas about that really important issue in the law an issue that we face several times every year an issue that we faced for example you know last year was full of that issue was full of the issue of when is it proper to overrule prior decisions what justifications do you need how loath should you be to do that all of us believe that there are occasions on which its proper the question is you know what are those occasions and how often do they come up and how reluctant should you be to conclude you see and a reason for overruling a case and Justice Scalia was actually the person who assigned me that opinion the way the court works the senior justice in the majority of science opinions and and he assigned it to me and he said was it was you know my it may be my third or fourth year on the court and he said it would be a really good decision for you because it forces you to think through questions or legal method and it was he was so right about that so so I think it's given me a good grounding for all the years that have followed and will follow because this kind of question arises again and again and again the audience can students in alumni can see have a great sense of humor so let me ask you about humor there's a scholar at bu Law School who well it's a mixture this professor has written about who's the funniest justice on the court yeah and any people got tenure for this i well there been stranger cases he's actually a great guy and and I find these very amusing right his scholarship was to count the number of references to laughter in Supreme Court transcripts and then decide whoever got the most laughs was the funniest yeah well for you know Scalia Zemus come up so often in this conversation but he was clearly the funniest hands absolutely there's no one anywhere close to him yep where do you rank in that contest well there's there is now another funniest hands-down used to be Justice Scalia Justice Breyer has now taken the crown and he not only has been the funniest Justice according to Professor Wexler for the last several years but by a mile so it is it is done by how many times people laugh when you say things at at argument I come firmly in the middle yes so professor Wexler who I professor Waxler once wrote that I was underperforming he professor Wexler was convinced that I was funny I I think he based this mostly on my confirmation hearings but for whatever reason he decided but I yeah so I'm about I'm about average well well we think you're wise and there are four other justices who could be sitting in this chair and you would be laughing harder I don't think that's true a couple of questions I want to get in and then I've asked some students to submit some questions that I'd like to ask you but I'd like you to talk about your the justices that you clerk for I know you had great respect for them so could you say a word about Judge Mikva on the DC Circuit I knew well and also had a wonderful friendship with him and also Thurgood Marshall yeah I was a very lucky person coming out of law school so my first job was to clerk for Judge Mikva who was a judge on the DC Circuit he was a really interesting wonderful man before he became a judge he was a congressman he had served maybe four or five terms from a district in Illinois in Chicago I had always a very very tight district he would he would win and then he would lose and then he would win and then he would win by three votes and then he would lose and finally President Carter put him out of his misery and just appointed him to the bench and then and then he was a really fine fine judge and then after some number of years President Clinton asked him to come be counsel to the president so judgment FIR gave up his seat on the DC Circuit and went to work in the White House for a couple of years to be counsel to the president and he I think I think one of the introductions said that I had served in the White House and that was because Judge Mikva called me on the phone one day I was teaching at the University of Chicago at the time and said you know come work for me again so that's how I got to at the White House and he was a person who just knew an incredible amount about government in all its shapes and sizes he sort of knew it from every angle and he was a person of deep wisdom about people about institutions the way the law worked and I learned a great deal from him then Justice Marshall was an experience I mean I think a different experience then you know we felt ourselves to be very lucky that we were not just clerking for a judge but we were clerking for this iconic figure a part of history a part you know an important part of American history if he had never become a judge I think he was the greatest lawyer of the 20th century certainly if if if what it means to be a great lawyer is to do justice he was the greatest lawyer of the 20th century he and the people he worked with at the Legal Defense Fund breaking down the Jim Crow system of segregation brown v board and all that came before and after he was also just a great lawyer he he did stuff that nobody does these days you know these days you're either a trial lawyer or you're an appellate lawyer for example you're either a civil lawyer or you're a criminal lawyer he did things all over the place he would he argued 18 cases before the Supreme Court won almost all of them was a great appellate lawyer and then you know he would leave the August halls of the Supreme Court and he would get on a train and go into the segregated south where you know you couldn't stop to go to the bathroom and and appear in these tiny courthouses and small towns and Mississippi and Alabama and you know all over the south and and in and fight for somebody on trial for rape or murder you know black defendants in front of all-white juries and and you know you know he sort of went from one extreme of the law to the other and he was he just sort of like got to the heart of every legal case this was true when he was a justice to is that sometimes a lawyer would be at the podium and talking and Justice Marshall would ask a question out of the blue and it was framed and these extremely sort of down-to-earth terms but it just sort of stopped the lawyer in his tracks and it's like you know I don't even know how to answer that almost because it sort of got so much to the heart of things and and often destroyed the case so so it was it was and and and he was the thing about justice Marshall is it was that you didn't just have to read all all about him in books he was a great storyteller he was the best storyteller I have ever known in my life hands down he had all these faces and he put on different voices and he brought incidents to life and and he would tell stories about his life about all of it and he had a lot of stories to tell and sort of astonishing like he never repeated one you know III can't go two days without repeating something that I've told my clerks and he I don't think he ever repeated a story and we just felt super privileged to be there and to be in the company of this really quite extraordinary man that's a great tribute to him I'd like to get one more question in before I ask you some of the questions that the students have sent to me but and I think it's important for the students to hear this discussion you had a big disappointment in your life when you began your first year of law school and I've heard you say that in life often times great disappointments could actually be opportunities so could you talk about that disappointment and how it all came about yeah I think I think you've been watching some of the events that I've done for first-year law students rehab yeah so this has become a kind of I go up to I was I taught at Harvard for many years and I go up there and I teach every year in September and I do an event for first-year students and this has become a kind of like a ritual that we go through for for for first-year students and you know it's basically all about how I did really badly on my first semester of law school and which I did and and you know it's a way for me to say to students you know this you know this might not be the easiest thing in the world for you keep at it you know it's you know some people get it right away some people don't if you don't well you're in good company and and you shouldn't think that you're not at the right law school or you shouldn't think that you're not cut out for this because very probably you are and so so so so that's the story but the stay I think you know you referred earlier to a time when I was nominated for the DC Circuit and I didn't get that and I think sometimes some students and or or young lawyers they look at the resume of a person like me and they think oh everything was so easy everything was golden and you know and and and and when you when you do that you're seeing only the the jobs I got you know you're not seeing all the jobs I didn't get like that DC Circuit Judge ship like you know there were many other times in my life and I am a big believer in it's a little bit of a magical thinking I realized but I'm a big believer in like when a door closes a window opens and that nobody should be floored by any particular disappointment because disappointments are likely to lead to opportunities that you never would have had otherwise and that you know all those people who on the surface look like they've got everything under control they probably don't you know they've they're probably you know worried about their first year grades too and and so well I I'm an optimist and I certainly believe in that philosophy that talking about it an application of it you were a finalist for the presidency of Harvard University there's another disappointment saying yeah it's like what else hasn't she gotten you know but what do you think would have happened if you had gone there would you be on the Supreme Court today would not no you wouldn't it's also just a for law students who were here I also think that this is just a story also about the importance of serendipity in life and the you know a lot of law students they spend a lot of their time planning you know first I'm going to do this and then I'm going to do this and then I'm going to do that and and in fact like most careers are are a matter of luck and serendipity and keeping your eye out for opportunities that you never thought would come and and being ready if you want to get off the plan you know for something that looks interesting and exciting even if you don't know where it will lead and even if you think you might be taking some risks and even if you think you're not sure exactly how you would get back on the plan and it's sort of a you know they're I think pretty much everything in my life has been something that wasn't planned so you know in those days when I was a Dean at at at Harvard Law School I really thought that the next thing was was I was going to be a university president and and that's what I was sort of thinking about at the time and then you know crazy stuff happened and all of a sudden I became Solicitor General so from a moment when I thought I was going to leave the law entirely all of a sudden Wow you know now I'm a Supreme Court justice who would have thunk good lesson let's turn to a couple of questions last year if you were here you may remember I was difficult for law students to get the microphone most of the questions I asked were from students from other disciplines which were great but we wanted to give law students a chance to ask great but they were not as great as what yeah now you said that I did let me ask a couple of them here's one is it a problem that all of the justices graduated from one of three law schools I think it's maybe Harvard Yale and I guess Columbia claims Justice Ginsburg but she's mostly heart 2/3 Harvard I think she would say she's Columbia and and you've been quoted also about similar subjects saying the court may suffer from a coastal perspective its deals with where they are do these facts harm the courts legitimacy or public image would the court benefit by greater diversity in the backgrounds of the justices educationally we talked earlier about yeah prior court work probably so for the same reason as I gave when you asked me about about women on the bench I mean I think it helps if many Americans can kind of see themselves reflected in the court and and that has to do with the obvious stuff like race and gender but it also has to do with you know where you grow up and where you went to school and all kinds of different things the problem is it's only a nine it's only nine people and and any given president usually only has one or two or you know tops three appointments so it's a little bit hard to figure to do everything and to get all the different things that you know different measures of diversity that you would ideally want but for sure I think I think that there is as I mean there are if you look at the current court there are a lot of years spent on what I you know on the Acela line you know what the Acela line is you see if you were in New York down that would have gotten a laugh cuz the another line is the Amtrak line that goes from Boston to New York Philadelphia a few bucks more and you get there sooner yeah exactly and you know a lot of us have spent a large large portion of our life on that and there's you know there's something to be said for a little bit more in the way of diversity in that area and court and schools to another question that a student wanted to have asked when did you first dream about being justice on the Supreme Court maybe going as far back as you can think about it and if you had not been appointed where do you think you would be today I think I sort of just answered that question I really didn't start thinking about it seriously until I became Solicitor General when I became Solicitor General it's it's a little bit hard not to think about it and in fact just a few months after I became Solicitor General justice souter retired and and I was put on the shortlist for President Obama's Supreme Court nominee and I went through the whole process and that was a process where justice Sotomayor ended up being the the nominee but it was hard especially you know the after that to not realize that I was a you know a little bit that I was going to be in the mix for a future vacancy and so I think that that was really the first time that that I thought about it seriously I mean Supreme you know Supreme Court's only nine people and it's so much luck it's like a lightning strike really I don't think it's the kind of thing that anybody can seriously say I aspire to be a Supreme Court justice you know like don't but but yeah you know what what I said before is right you know I definitely had goals throughout my professional life but often those goals ended up being superseded by other things other opportunities that came along so I really feel as though I mean I I feel like I've been so lucky I've done a lot of varied things the Dean was talking about how I couldn't keep a job and that was true if you look at my resume until I got to this job I flooded about quite a lot but but you know I had lots of wonderful opportunities and and mostly they were surprises you know they were things that wow I have you know somebody just gave me an opportunity to do something that seems really fun I never would have thought of it let's take it well I'm sure everyone in this room joins me in saying we're very happy that you are where you are today so let's thank [Applause]

Channel: University of Minnesota Law School

Views: 15,964

Rating: 4.8620691 out of 5

Keywords: university of minnesota, law school, minnesota law, stein lecture, stein lecture kagan, elena kagan, supreme court justice, supreme court, 2019 stein lecture, robert stein, joan gabel

Id: E8NnDaxJMMA

Length: 71min 11sec (4271 seconds)

Published: Thu Oct 24 2019