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