- Welcome everybody to
this remarkable opportunity to be a part of a conversation with two of the world's leading jurists. Before we begin, I wish
to acknowledge this land on which the University
of Toronto operates. For thousands of years it
has been the traditional land of the Huron-Wendat, the
Seneca, and the Mississaugas of the Credit River. Today this meeting place is still the home to many Indigenous people
from across Turtle Island and we're grateful to have the opportunity to work on this land. The Faculty of Law at
the University of Toronto is host to a dizzying
array of wonderful speakers and events but even in that context, today is an extraordinary occasion. It is an honor to have Justice Elena Kagan of the United States Supreme Court and Justice Rosalie Abella of
the Supreme Court of Canada join us today. Thank you both very much for being here. (audience applauding loudly) With lives and careers that these two distinguished
guests have had, I could take up the
hour with introductions. I think merely mentioning
their awards and honors would take up most of the
hour but I have a feeling that hearing me talk is
not what you came for and I will be brief. Today's special guest is
trailblazing Justice Selena Kagan. A bit about her. After clerking and practicing briefly, Justice Kagan began her
academic career as a professor at the University of Chicago,
swiftly earning a reputation for scholarly brilliance. She then joined the Clinton
White House in various roles. On leaving the White
House, she became professor and then dean of Harvard Law School, the first woman to hold that post. She was a transformative
dean known for her hard work, intelligence, collegiality,
and great judgment. She is credited with many
other accomplishments with creating a new and positive sense of unity and community at
that great institution. Former colleagues describe her
as one of the most successful academic leaders they have ever seen. Another trail was blazed
next when President Obama appointed her to the
role of Solicitor General of the United States, the
first woman to hold that post. President Obama then had
the excellent judgment to appoint her to the Supreme Court. She is a leader on the Court, known not only for her legal insight but also for her wonderful legal prose. And of course now, no bio of
Justice Kagan would be complete without reference to her
honorary Doctorate of Law from the University of Toronto
conferred this morning. Congratulations. (audience applauding loudly) I describe Justice Kagan
as our special guest only because it is impossible
think of Justice Abella as a guest. Not only are we all sitting in her room, (audience chuckling) but we are also sitting in her faculty. She's not just our alum,
but a steadfast friend and supporter of our law school. Another honorary doctorate recipient from the University of Toronto, Justice Abella, as many of you will know, has also had an extraordinary
life and career. Born in a displaced
person's camp in Germany, a piano prodigy, she
has, like Justice Kagan, been a trailblazer her whole life. After graduating from UofT, she was appointed about
a minute and a half later to Ontario's Family Law
Court at the old age of 29. She was the youngest
appointment to the bench in Canada's history and was
also the first Jewish woman appointed to the bench in this country. To top it off, she was
pregnant at the time. She was later appointed to
the Ontario Court of Appeal and then the Supreme Court of Canada. Along with a wonderful legal mind, she shares with Justice Kagan
a remarkable judicial pen and she's used that tool
wisely and compassionately. I like to say that the only thing bigger than Justice Abella's
legal brain is her heart. Thank you both so very
much for being here today. The format for the discussion
will be that Justice Abella and Justice Kagan will
spend about a half an hour in conversation with one another and then we will turn to
the audience for questions. It's a majority student audience and I'm hoping that
they will give priority to questions from students. There's going to be
microphones at either aisle and I would please encourage
the students to line up to ask your questions of
these two wonderful jurists. Thank you again for being here and Justice Abella, I
will hand it over to you. - Thank you. Well, first of all, Dr. Kagan. - Doctor? - Doctor, that's what
he said, Doctor Kagan. - Ah, doctor. (audience laughing) - Dr. Justice Kagan. My wrist hurts a bit here, can you? - I have nothing to say about that. - We are so excited that you are here. Thank you so much for
- It's a great honor. coming to Canada. It's a great school and
it's a great country. - It is a great school
and a great university. And a great country. - You know what we call Harvard? The U of T of the South. (audience laughing loudly) I want to thank you for one other thing, which I have learned this
afternoon, and that is the way for a Canadian Supreme Court judge to get a standing room
only audience in Canada is to be on a program with
an American Supreme Court. (audience laughing loudly) Where to st-. - Just because you come back here so often they're used to you. - Chopped liver? (audience chuckling) - But this is, this is amazing. You have your own courtroom. - And I'm still alive. - You're still alive. (audience laughing loudly) I'm just guessing you did
not give a gazillion dollars to get your name on that door. - No, no. I cut it off at one million. (audience laughing loudly) I said, that's all my
grandchildren can afford. - (inaudible) accomplishments, you know. - This is very nice but
the first time I walked in to the Abella Moot Court
Room, I found myself saying, I feel like Fred in
Spamalot, I'm not dead yet. (audience chuckling) Let me start with something
which I'm sure you know. We are so riveted to the American confirmation
process, the hearings. We watch, we pay attention. - You did not give me any fair warning you were going to ask me that. (audience laughing) You know, we talked in the back. - Excuse me, I'm the judge, I don't have to give you fair warning. (audience laughing loudly) We were all glued to our TVs because it's a fascinating
thing for a nice, gentle candidate to see. But I think I speak for. - Do you have any kind of hearings? - I hear very well. (audience laughing) Let me ask my question, because I think it's on everybody's mind who watched the most recent hearing. Do you like beer? (audience laughing and applauding loudly) - What was your second question? Seriously, can I, can I ask you, do you have hearings though? - No, we have the merit system. (audience chuckling) No, no, I'm. - It's off? It's on? They were laughing. (audience laughing) Thank you. Do you have any hearings? - We have kind of a hearing. We, there was, you won't
be surprised to hear, a lot of discussion in
this country about whether we should have the
American-style hearings. Most of the judges resisted
it because our sense was, as you wrote in an article once, people tend to give answers
that are pretty anodyne and not terribly revelatory of
anything that really matters. But people know you and
there is recognition. I mean, if I walked out
on Bloor Street with you, people would say, who's
that with Elena Kagan? (audience chuckling) You have a name recognition,
the Court has recognition. - Is that a good thing or a bad thing? - I don't know. It's a, you have a different
culture than we have. - Yeah. - But the question for many of us was what comes from those
hearings that outweighs some of the negative
consequences of the hearing? We have, we started one. We had a very nice judge
who did the first one, a really nice guy. He was sweet and adorable and
everybody behaved really well and they walked away
saying, see, we can do this. Then as time went on they
became somewhat attenuated and now we have vestiges but
nothing like your hearings. Do you think they work? - Yeah. I think it's really hard. I mean, I don't think
that they work very well in its current form but
nor would I say we should just get rid of them. I have complicated and
mixed feelings about it. I do think we're an important
institution of governance and the senators who are
charged in the Constitution with deciding whether any
nominee gets to the Supreme Court should have the ability
to take a person's measure and the public should have
the ability to do the same and to communicate their
thoughts, if they have any, to their elected
representatives who are charged with that Constitutional responsibility. It seems good to me from the perspective of transparency of governance and just people taking their
Constitutional roles seriously and having an opportunity to see a person and to try to figure
out what kind of justice she or he would be. In the abstract, I think
that that's a good thing. I think in the concrete,
it's a little bit hard to watch any of these hearings and think that they
accomplish all that much. - What was it like to go through one? - I had a relatively calm process. I think people, people
kind of knew that I was going to get through. I wasn't one of your more
controversial nominees. - What's that like? - But even there, I mean, it's, we have lived in our country for some years now in
a very divided system. I think people had a
high degree of confidence that I was going to get
through but not with a lot of bipartisan voting. I got a number of Republicans
but fewer than 10. I think there were six or
seven or something like that. Even a relatively
uncontroversial person still, that the expectations
were that I would not get very much bipartisan support. That's been true pretty
much of all of us since, I think, the Chief Justice
was the only person who really managed to
pick up lots of support from members of the party
who did not nominate him. That's very different
from what it was like, about 30, 25 years ago, my
colleagues Justice Ginsberg, Justice Breyer, Justice Scalia. - Right. - I mean, all of these
people had strong views, at least as strong as the
people who have gotten on the Court more recently
and they all got confirmed by votes of like 98-2. Something very dramatic in
the American political system has changed with respect
to Supreme Court justices. It's hard to figure out
how to get back to a system where people get the
opportunity to question you and to find out whether you're, whether you have the
qualifications to be a judge and whether you are a person
with good judicial values. But then think our job
is basically to say yes as opposed to our job
is to fight about you. It's hard to know how we
ever get back there because the Court in the United States decides many important questions. Questions on which the
population is deeply divided and so people think of the Court as we need our person on it,
we need our person on it. I think that's bad for the
Court and it would be better, I think, if it was all toned down. But I don't know how to get there. - The fact that the country appears to be in a very different place
from where it was 20, 30 years ago, does that
argue for a different role for a Supreme Court? - Well, I think it's clearly true that this is related to the
courts taking positions on many controversial issues. If the Court did nothing on the issues that people feel strongly about, and you can name them as well as I can, there would be less political controversy surrounding the Court and less
engagement with the Court. But my court, like your
court, has a responsibility to police the Constitution. Police the political
branches and make sure that they measure up to
Constitutional commitments and guarantees and that's
sometimes going to take you into controversial areas. Is it a reminder that there is value in judicial modesty and restraint and in
what used to be called the Passive Virtues? Yes, I think it is. But I think it's inevitable
that my court, like your court, is going to have a voice in some issues that members of the public care about. - Now what, what limits
are there to your role as an individual judge? You have a set of values, you
have a judicial philosophy, how do you implement that? How do you take the skills
you had as a Harvard dean, a consensus builder, and
apply them in a setting where it may not be as conducive to having people open to coming
together on a compromise? The first position is
it's good at this time when everybody is so polarized
to have an institution that brings people and issues together. Is that possible, though,
when you're in an institution like yours where people
are independent-minded? - Yeah. - Strong and have very set views? - It's possible sometimes but it's not possible all the time. For exactly, it's not
possible all the time for exactly the reason
that you just mentioned. These are nine very smart
people who have been around the block once or
twice, who have their own views about lots of questions
that come before us, and about judicial philosophy and method that leads them to give certain answers to even new questions that come before us. But all that said, I
think it remains possible for people to listen to each other. I think we actually do a
pretty good job on the Court of doing that, of
actually paying attention to what each other is saying and trying to reach common
ground where we can. Sometimes we do it better
and sometimes we do it worse but I do think that there is
room in a judicial system, even a judicial system
that necessarily decides on many important matters
because of the important role that it plays in the
Constitutional structure. I do think there's room for
people to listen to each other and to try to find common ground and to try to find areas of compromise. I think that the way you
do that, no surprise, is the way you do it in
any institution is by, there are many big questions
that people disagree about and usually the way to find agreement and the way to find consensus
is not to keep talking about those big questions because
you're just going to soon run into a wall. But to see if you can reframe the question and maybe split off a smaller question. The way to reach compromise and to reach and to gain consensus is to
take big, divisive questions and make them smaller and less divisive. When people really want to
do that, it can often happen. - But some of the issues that
you've been dealing with, like Union check-off, gay marriage, really don't lend
themselves to being reduced to smaller components. - I mean, some don't, with
respect to any particulars but some issues look pretty binary. When they have that
structure, it's awfully hard to get nine people who have
different judicial philosophies, who have different ways of
approaching Constitutional issues to get together and decide things. But I will say, I don't think,
I think that's clearly true, but I think that there's a greater area than many people think for consensus building. For an extremely unfortunate reason, we were an eight-person
Court for almost two years, almost two terms, and that was
because Justice Scalia died in the middle of the
term but before we had decided very many cases
for that term and that seat was unoccupied almost
through the next term. There were two whole years
of the Supreme Court's life where we were an eight-person Court. There's a reason why
appellate courts don't have an even number of people, right? (audience chuckling) That reason is because there
are some questions that, it's like how do you do it if it's, if it's an even number of
people we're going to be tied, what are we going to do? But all those two years, we tied, when we do tie, the way
the US Supreme Court works is we do something like it's four-four, we can't progress any further, it's affirmed by an equally divided court, and we descend it back down and whatever the decision
below was stands. I think people were really
scared that in those two years that was going to happen quite a lot. It turned out it happened
almost never that all of us were really committed to
trying to find common ground and to really committed
to operating in a way that people didn't
think that the Court had ground to a halt and that the
Court had stopped working. That meant on a fair number of
cases we did our usual thing, we went around the table,
we expressed our views and then we discussed
and we got to the end and it looked like we were four-four. Then the Chief Justice would say, well, let's keep on thinking about this and let's keep on talking about this. Whether it was that
day or we would go back to our chambers and try to figure out ways to move forward, we almost always did in that position where
we had to because we felt if we didn't it would look
to the American public as if the Court had ground to a halt. Where we had to, we decided
things and we found ways to reframe questions and to
break off smaller questions from bigger questions
and to reach agreement. Now, some of those agreements
were a little bit silly. It was like, there was this big question and everybody needed to
know the answer to it and the courts were divided
and it was really important and we couldn't really decide it. Instead, we decided some other thing that actually nobody cared about. (audience laughing loudly) That was true sometimes
but it was also true, it was also true that sometimes
we did really good work when we did it like that,
where we had to keep thinking and we had to keep saying is
there a way of reframing this where it's not like half
the people think it's great and half the people think it's the most horrible thing in the world? Especially in a divided
time, I think that there is incredible value to the
Court trying to do that, trying to find places where
it's not that half the country gives you a thumbs up and half the country gives you a thumbs down. When we had to, we did it. Now, it's a lot harder to do that when you're nine people again. Because when you're nine people again, you go around the table and we don't decide many
of our cases five-four. I mean I think everybody
outside the United States, maybe some people in the United States, thinks that that's how
we do our whole job. Fifty percent of the time we're unanimous. It's really in a very
small percentage of cases where we look deeply divided
and are deeply divided. But those cases are
often cases that matter and the American public cares about. On those cases when
you go around the table and it's five-four, rather than four-four, it's hard for people to
say let's keep talking until we can reach some greater consensus. It's hard for the people,
certainly the people, I know for me, if I'm in the
five, it's like we're done! Right? (audience laughing) But I think, I think
that we are also aware, we should be aware. I think often we are
aware that there's value to building bridges, there's
value to building consensus, there's value to not seeming
and not being politicized. I don't think we are ever
politicized in the way some people might think
but certainly we sometimes appear that way to the American public. There's lots of value in not being that. If that means that we
go back to our offices and think harder about how we
can find areas of agreement, rather than, I think
that that's a good thing. Sometimes it won't be possible. - Most of the cases that you talked about where there was a five-four
split, as you say, are the ones that the
country cares about the most. - Yeah, I mean, not all of them. - But they tend to be
Constitutional cases. - Yeah. - And part of what looks
to the outside is happening is that there are two
different cultures in the way Constitutional law is approached. You have something like our Living Tree, it grows with the times,
you have stay on top of it, there is originalism, there
doesn't seem to be a whole lot of move between the two groups, there are the levels of
scrutiny that seem to be applied in odd ways. Dip Korematsu was subject
to strict scrutiny. It's not clear where
all of that takes you. The divide, the philosophical divide, and Constitutional questions about what the role of state is, it feels profound from the outside. - Uh huh. - If you slice and dice
so that you're only doing the narrow, can it be
said that you are subject to the criticism that you're not doing what the public needs you to do? Or is it a way of saying,
look, you also need us to retain our legitimacy
and this the way we do it? - Yeah. Well, let me, let me split
that question into two parts. The first part you gave a kind of analysis of why it is that we're
sometimes divided on cases. - How it looks maybe in the judgments. - I think, I think that
this is basically true that you said it has to
do with different views of how to approach our Constitution. I think that that's right, I
mean, I think that this is, sometimes people think, oh,
they just, they're politicizing the same sense that
Congress has politicized. There are Democrats and
Republicans in Congress and then there are Democrats
and Republicans on the Court. They're kind of doing the same thing. I completely reject that. But it's not as though
we're acting in a partisan kind of way, like what's
good for my party? I just don't think that that's the way judges think generally and
I know it's not the way that I think or my colleagues think. But I do think that we sometimes mirror, in Constitutional cases,
divides that exist elsewhere in Congress and among the American people. We do that because we do have
very different approaches to the Constitution. For ex-, and let me compare
that to, for example, statutory interpretations. - Oh, yeah. - We will have super important statutory interpretation cases
and also cases which have a kind of political valus,
if you know what I mean. I mean, you're interpreting
the statute in a way that the left part of the
American public will like and not the right part. The liberals will like and
the conservatives won't. Or the conservatives will
like and the liberals won't. And notwithstanding that,
we actually have achieved sort of amazing consensus
on statutory interpretation, whichever way it cuts. Sometimes it cuts for conservatives, sometimes it cuts for progressives,
whichever way it cuts. The reason we are able to
have that kind of consensus is because we have a
shared view of how you do statutory interpretation. With maybe an outlier or two
on each end of the spectrum, that almost all of us basically approach statutory interpretation
questions in the same way, ask the same questions about
how to go about giving meaning to a statute. That produces a set of results
that cannot easily be said to be like, oh, the conservatives did
the conservative thing and the liberals did a liberal thing. We just don't do that. But when it comes to Constitutional cases, people can look at us
and say, oh look at that, the people who were
nominated by Republicans are doing one thing, which
tends to be the thing that conservatives in Congress
would agree with and vice, and the same on the other side. I think it's because we just
have different understandings of how to interpret the Constitution. - And that's my question. - Yeah, and that's not, I mean,
this is something I think, you tell me, I think it's
different from this country. Is that there are two very different views of what you're doing when you're doing Constitutional interpretation. - You have two different
views and it's an, the question is since you
have a consistent approach to statutory interpretation,
which I suspect is like ours, what was the intention of the legislature, what did the words mean,
but when you're talking about Constitutional law, you're talking about the
fundamental values of a country, their aspirational, and
that's where you have to have, I think, in a court, and most
courts around the world have, an approach. They may disagree on
how it's to be applied in a particular case but
they have an approach. - Right. - Yes, we can have, we can
have international law, yes, we can have comparative law, yes, the government has
to justify its intrusion in a proportional way. We have, we have a philosophical
approach that is unified. - Right. That's, that makes life easier for you. - Much. (audience laughing) - Because we don't. We have, there's lot of
subtlety and lots of nuance that I'm going to ignore when I say this, but we generally have two approaches. One approach, let's call it originalism, is this approach where you
look to what the drafters of the Constitution thought when they wrote those words down. - Like statutory interpretation. What was the intention? - What were the ledgers? The original public
meaning is what it's called and it's like what did
people with those words, what did they mean then? And the then is 1789 or the then is 1868. That's basically the two alternatives, 1789 for most of the Constitution but 1868 for the important equal
protection and due process clauses that came about as a
result of the Civil War. There are different ways
of doing originalism and some people differ even
within the originalist camp. But in general, you're
basically, it's a historic, it's a historical inquiry
which asks what they thought and what they understood at
a particular moment in time when the Constitutional
provision came into effect. I think, unlike in this
country, that has a, that has, there are, that is a very serious mode of Constitutional interpretation
in the United States. - It's also new, isn't it? It wasn't there before 1982
when the Federalist Society was developed because you often had very different approaches
until the markers were put down and then it became a divided
approach to Constitutional law. - Yeah, I would say it's, if
new is within 50 years or so, it's new. That you, it's 1970s, early 1980s,
something like that was when it really developed. I have to say, it developed,
I think, in response to some serious concerns
about the other approach. The other approach is sure, we
look to the original meaning of these provisions, but that
doesn't tell us everything. First off, it's often hard to figure out and even if you could figure it out, in the words of John Marshall, our first great Chief Justice,
this is a Constitution we're expounding, it's
not meant to be frozen at a particular moment in time. We also look to historical traditions, we look to sort of history
not just at one moment but over time, we look to
how precedent has developed. And depending on, this too,
there are many nuances, many subtleties, people
differ in the way it's done, but some understanding that things change and values change in a society
and that that's reflected in its history and its
traditions and its precedents. I think originalism
grew out of a sense that that mode of interpretation,
which I'm not an originalist so I associate myself more
with looking at the broad sweep of American history. - Et Snider, is that the
case that kind of started the whole approach to history, Snider, 37? Maybe I'm wrong. It's okay, it's been a
while since I've taken. - Okay. But I think that there was
a sense that that approach was not disciplined enough. It was you could make up
anything and a bunch of judges would get together and
was like how do we think our society should look? And do something that didn't
seem very law-like to people and that seemed both
contested and contestable. - Which brings me to
one of the other things that you see in the divided
court and that is, okay. - But we're having such a good time. - Aw, is it time? - [Male] Have to make time for questions. If you want to stay for another
hour, you're welcome to. - Justice Abella told me
that she was going to ask me where I got my hair cut. (audience laughing loudly) I think that I was. - Wait a minute, I'm not finished. I'm not finished. - I was misinformed about the
nature of this conversation. (audience laughing) - The divisions in the
Court bring me to the rule of the dissent and the tone
of some of the dissents. Because they are such high pressure areas where people are fundamentally
divided on the Court about what society should look like, there is language that creeps
into some of the dissents that says things like you're making it up, that says who cares about precedent. I thought your dissent
in Janus was fabulous. Where you said what was
wrong with Abood in 1977? That worked, why are we changing it now? And you had a judge who
kept inviting people to challenge Abood in the Court. Your tone was strong but it was civil. That isn't always the case. - Some people might disagree
even on that, right? (audience chuckling) I mean, I try to not step
over certain kinds of lines but sometimes people
read back to me lines, years later they read
certain lines back to me and I think, oh, maybe I
should have left that one on the cutting room floor, right? - But you do worry about it? - I do. - It isn't clear that everyone does. - I think most people do. Look, Justice Scalia
was the greatest writer in the modern US Supreme Court but he had a sharp pen and he called them like he saw them. Then I can do the same thing. Other people can as well. We probably, the Canadian niceness thing. (audience chuckling) - If you're nice they give you a room. (audience laughing loudly) Do you have a room? (audience laughing and applauding) - But I think you're in, you said five or 10 minutes
ago, you said something like there's some things you can't set a line, there's some things you
can't compromise on. I think that there is, that that is true, not always true when you think it's true, but sometimes true. Where that is true, I
think especially in, again, a pretty polarized time,
a pretty divided time, a time where you hope that
the institutions of governance find ways to bring people together rather than to drive them further apart and where you fear that
they're not accomplishing that objective very well. That in such a time, we step back, we take two steps back before we publish a really acerbic dissent or a really acerbic majority opinion. Take, because these charges and
counter-charges go both ways when this happens. You tell me, are people just more polite
on the Canadian Supreme Court? (audience chuckling) - Most. My concern about the tone issue in the American Supreme Court,
and has been for a long time, is it has a supply side
impact on the rhetoric other courts use and the
rhetoric lawyers may feel is appropriate. When it happens on our court,
there is, we're very conscious and try really hard to see if we can be persuading colleagues or
they try to persuade us. Can you take that out? - Yeah. We do have a, when people, sometimes
people will call each other and say, listen, could
you take out the sentence, could you take out this line? I think almost always people do. But we have a pretty high bar
for when those calls are made. - Yeah, right. - There is even worse
than you see, believe me. (audience chuckling) Because things do, I think it's very, very rare that
such a call would be made and the person would say no, this is absolutely integral
to what I want to say so I'm going to keep it
in exactly as written. They almost always, people
change it, people drop it. But probably our bar is
higher for what counts as. - Probably. - As out of bounds. - Can I ask you one more question? Do I have time, Gene,
for one more question? Solicitor General, scholar,
dean of a law school, jurist on the Supreme
Court of the United States. If somebody said to you, Justice
Kagan, you've done so much in so many areas, what
would you like people to see as your legacy? What would your answer be? Other than our friendship. (audience laughing) - That's very important to me. Yeah. - Me, too. (audience chuckling) - We'll do that afterwards, alright? - Okay. - Alright. I can answer that question
for jobs I've had. You can say to me what do
you hope your legacy was as dean of Harvard Law
School and I could give you a reasonable answer to that question. I can't answer that question for this job. I mean, I'm curious whether you can. I feel as though, and this is
my, beginning of my ninth year so it's not as though
I'm a rookie anymore. - Nine years? - Yeah. - Rookie. (audience laughing) - Well, that sort, I
think I was going to say something like that. - Not a rookie. (audience chuckling) Very old, in fact. - Uh huh, uh huh, how many years? - Three years left. - How many years? - I've been a judge for 42 years. - How many on the Supreme Court? - Fifteen. - Uh huh. - Still good. Wonder where I get my hair cut? (audience laughing) - I'm going to say I don't
want to think that way about what I'm doing now. I think I want to do it
case-by-case, sit in-by-sit in, year-by-year, try to figure out as I, I think you have to reflect a little bit on where you've been, where you're going, but I don't want to say this
is how I want to be remembered. For me, that would deprive me of the ability
to take it a case at a time and to really try to think
in that case at that moment, what's the right answer. I'll let the legacy stuff
take care of itself. - It will. It will. Thank you. It was such a pleasure. (audience applauding loudly) - Those are hard questions. It's not over yet. - [Male] We have 15 minutes for questions. There's a mic on either aisle. - You were great, great. - [Male] If anybody has mobility issues we can get a mic to you as well. - [Female] You go ahead. - [Male] Oh, okay. I wrote out my question
just to make it coherent. Justice Kagan, do you think
that given the duty of a judge to apply the law impartially
and to some extent unbeholden from public opinion
that the politicization of the federal hearing process
does more harm or good? - That's kind of Justice
Abella's first question. We could just go back to the
beginning and rerun this tape. Yeah, I think I had, I said what I had to say about that. Can I say that? Is that like, you want to? - You can, you can. - [Male] Okay. (audience laughing) - [Female] Thank you very much
for coming to the law school to speak with us today. I almost regret to ask this question, but I feel like I have to just because. - We're in trouble now (inaudible). - You're in trouble, I'm not. - They have to ask the question. - [Female] Just because I. - The great thing is that
I don't have to answer it. (audience chuckling) - And you're leaving town. - [Female] I and many
of my female classmates as well as my professors
and people that I know in the legal profession
watched the hearings involving your colleague,
Justice Kavanaugh, with a little bit of pain in our hearts. I'm wondering what you think the role of the Supreme
Court is and how it can be considered legitimate in
its treatment of women who have experienced violence
when you have not one but two justices who have been leveled
with credible accusations and the appointment
process has put them forth? - You were right, you should not have
asked me that question. (audience chuckling lightly) I'm sorry to say that but
there are some questions that I'm a part of this
institution, I care about it a lot, I care about my colleagues
a lot, and that's something that I'm not going to be talking about. - [Female] Okay, thank you. I have a back-up question,
it's totally different. - Okay. - [Female] Okay. What do you see the Supreme
Court's role in the context of the current Florida
recount and in light of some of the controversies that
have happened in the past? - Oh, I don't know. I don't know if anything
is going to get to us or in what context it will get to us. These questions about how
the election system works in the various states are
always very complicated in part because 50 states
have 50 different ways of running their election systems
and they are a combination of federal law and state law. Federal law, which the Supreme
Court does have something to say about; state
law, which is does not. Sometimes we get involved
in these questions and sometimes not at all. Sometimes even if it's a, even
if it's a question for courts it's actually only a
question for state courts and so there are all these
complicated situations about is this a question for
judicial resolution at all or do we let the political
processes kind of take care even of very politically, even ever, especially of politically controversial issues about how the
election system is running. Then even if it is something
that a court might have something to say about,
because in the end you need somebody to make a decision, as I said, a lot of the time it's
a matter for state law rather than for federal law. I don't know if any of, if
anything will ever get to us on any of this. I mean, in general, the Court
has had a lot of work to do in the area over the last number of years about whether certain
kinds of election systems are consistent with the
federal Constitution. Things like voter ID laws or things, anytime a state changes
its election system, somebody can come forward with a federal Constitutional
claim about it. There is, we've run a pretty
- Depressing. thriving business (audience laughing) in trying to figure out what states can do and what states can't do with respect to structuring their electoral systems. They're very hard because
they're about like, there are thousands of
permutations, right? Voter ID system, what
kind of voter ID system, where do you get your IDs, how
easy does it have to be made to get IDs? Do you have voter IDs? - We're not as strict as you are. - Uh huh. Well, I would say you're not
as strict as some places in. I mean the thing about
the United States is that it's like 50 states do things
all kinds of different ways. In our country, the question
of race in the electoral system is something that
constantly rears its head. In part, as a matter
of Constitutional law, in part, or so it used to
be, as a matter of statute, the Voting Rights Act. We recently had a very important case, which I wound up in the dissent on, striking down a provision
of the Voting Rights Act, which served, I believe,
as an important protector of minority voting rights. But there are, we do a
pretty healthy business in trying to figure out what is legitimate and what is not in a
world in which there are, it just seems that there are
just so many variety of ways for political actors to
construct electoral systems. Some perfectly legitimate, some not. - [Female] Thank you very much. - [Female] Thank you, justices. Justice Kagan, I mean,
other than your haircut and possibly how Justice Bader
is doing after that fall, my question is in relation to your comment about the role of
institutions of governance like the Supreme Court
being a force for good and bringing people
together in times of discord and divisions and I think
this is, in recent history, one of the times when I
think the American populous has been quite divided. - I want to say something. I know you're getting to a question but I want to say something
just because of the way you framed that and I think, I mean, I did say something quite like
that but I want to make clear that this is all in the context
of you have to do your job. Right? And maybe this is one of the
things that you were saying, but your job is deciding legal questions. Deciding legal questions
that people need answers to. We're not in the business
of bringing together a fractured American public. I do think that there are
ways of doing your job, which is thinking about
law, interpreting law, applying law, resolving legal questions that are more or less conducive to, which more or less exacerbates
divisions within the country and that is not inconsistent
with the judicial role to think about such things. To think about the context
in which we're operating. I think that we should
want judges to do that. - There was a debate, if I
could say, this is the point that was made when Roe v Wade was decided and there were those who
said it should have come not from the court, it was
something that should have done, come from the ground up and
the government should have made sure that this was legislation rather than judicial fait. That's an open debate. I know that one of your
colleagues feels very strongly that it should not have
been done by the courts and there are others who
say if you hadn't done it we might still be there and waiting. Either way there is a
division in public opinion and I guess you just
sometimes have to choose which side of the division
you want your judgment to fall on. - [Female] I guess following
up on your comment, are you hopeful for then
the judiciary's role and the Supreme Court's
role in this time to maybe bring together, bring people
together is too strong language but to be a force for consensus
in these fractured times? - Yeah, again, I don't
want to say that we should think of our primary
mission, force for consensus. I think primary mission is
to decide legal questions, to interpret, apply, think about the law. But am I hopeful that as we
do that we recognize that we, we should not pour fuel on the fire and to the contrary that
we should try where we can, consistent with our primary
role of law interpretation and law application, where we can, of helping to build bridges
across some of the divides in American society? Yes, I'm hopeful of that. - [Female] Thank you. - [Female] I also wrote down my question. You've touched on this a
bit with the other questions and through your conversation
with Justice Abella, but I was wondering how
the Supreme Court has, like has had to navigate concerns about remaining non-partisan
in the eyes of the public, especially in the face of
increased politicized rhetoric from the nomination process all the way through confirmation? - Yeah, I'm feeling a little bit as though I'm repeating myself. Clearly this is the
question of the day, right? - [Female] I think maybe
I'm more curious about you, like you said you do your
jobs, you interpret the law. But when you come altogether,
is there a sense of how will this be perceived by the public and like does sort of politics
ebb in to the everyday job as it seems to have in the sort of context surrounding the job? - Yeah, so, if you were a fly on the wall in our conference room,
I think you would find that 98% of the time we talk,
we talk in the way you talk when your in law class. We talk about the law, we talk about how to interpret the law, we talk about decisions that the Court has previously announced, what they mean. We talk about history,
we talk about precedent, we talk about all the
things that you talk about when you are facing a hard legal issue. That's what we debate,
that's what we discuss. These bigger concerns about
institutional legitimacy, about the way in which the
Court can either do something that appears to others
to be politicized or not, that's a very small,
teeny-tiny part of what we do. I think that that's basically right. Mostly we should talk about
law and try to discuss and debate and convince
each other about law. But nobody who's nobody
can live in this world and not be aware of some broader context and I think to the extent, sometimes we talk about that,
sometimes it's just the thing that we all know and we
don't have to talk about. But the American Supreme
Court, as I'm sure is true of the Canadian Supreme Court as well, is mostly a bunch of
people who are really good at thinking and talking about law and who really like thinking
and talking about law, spending a lot of time
thinking and talking about law. That's what our primary job is. - I think there's a danger,
too, if I can step in, this is a, the whole trick
about whether the judges should be catering to, conscious of, taking into account public
opinion, is a trick question because I don't know who the public is, I don't know how you gauge public opinion, I don't know that it's even
our job to try to figure out what public opinion is,
because we're not necessarily a majoritarian institution
that has to cater to what the majority in the public wants. To put it to the Court, are you taking into sufficient
account public opinion, if you unpack that, you're
dealing with shibboleth. I mean, what are you left with except, as Justice Kagan says,
you have to do your best to interpret the law the way you think it should be interpreted
and hope that over time it will prove to be the right decision. But you can't, you can't
pitch it to the agitations of the moment. It's just not a stable source
of intellectual invigoration. - [Male] We have time
for one more question. I actually don't know
who was at the mic first so I'll let you guys decide. - Why don't you speak together? Both of you at the same time. (audience laughing) - [Male] I think she might
have been first actually. - [Male] Okay. - [Male] Why don't you ask
a quick question and answer and then. - [Male] Thank you,
justices, for being here. Justice Kagan, you
talked about how the fact that the Court had an
even number of justices for almost two years. A fact external to the
substance of a case did cause the decision-making process
to adjust to that fact. I was wondering, the fact
that the Court seems to lack, after Justice Kennedy's
retirement, seems to lack a swing vote, someone in the middle. In recent years it always had someone. It had Justice Power, Justice Stevens, or Justice Anthony
Kennedy but not anymore. How important is it to have a swing vote and how is the Court's
decision-making process likely to be affected by the fact that it no longer has one? Thank you. - There's no question
that Justice O'Connor and then Justice Kennedy
played an important role on the Court and did so, in part, they were two actually
pretty different justices but they, Justice O'Connor was by
nature just a kind of centrist and she could sort of find
the middle of every issue. That was where she felt most comfortable. Justice Kennedy was actually
a little bit different. Justice Kennedy just had an eclectic set of views so that he. (audience chuckling) No, I'm serious. Justice Kennedy had a very
coherent set of legal principles. They were just principles that
he shared with some people on some things and other
people on other things. He wasn't like a centrist
or a median justice in the way that Justice
O'Connor was but he did, it did keep the Court looking as though, you didn't know what side it
was going to come down on. Both of those people played
an enormously important role on the Court and it's
going to be hard to know what the new Court is like. I think it's just too soon
to tell how we will function without somebody who is
naturally in one of those modes. I mean, it could be that somebody
will become such a justice or it could be that they won't. But that even the absence of
such a person can just affect institutional dynamics in
ways that are hard to predict. I don't know what will happen and I think American
court watchers will say that this is a really interesting time to think about our institution because, because for the first
time in quite some time not all the attention
will be on one person. - [Male] Okay. (inaudible) if that's alright. I'll project. Thank you so much, both
of you, for being here, for your wonderful
conversation and your answers to those questions. It's been a real privilege and honor to have you both here today. Thank you. - Thank you, Ed. (audience applauding loudly) Thank you. - [Male] If we could just hold to let the.
