A Conversation with U.S. Supreme Court Justice Elena Kagan

good afternoon well done so it is one of the great privileges of my life as a Dean to be able to welcome back a former dean and that's why she's here no Elena Kagan is Associate Justice of the Supreme Court the United States she is the one hundred and twelfth justice she is the fourth woman to serve on this court she was born and raised in New York City she attended Princeton where she majored in history she attended Oxford she attended Harvard Law School she completed clerkships at the Court of Appeals in Washington and at the Supreme Court she was a law professor first at the University of Chicago and then here at Harvard in between she left to serve as associate white House Counsel and later as a policy advisor to President Bill Clinton she was nominated to the United States Court of Appeals for the District of Columbia Circuit she did not get that job she got a better job she became a professor here and then a Dean at the Harvard Law School she designed this building thank you she led architect helped well he had a role but it was really it is what it is because of you she led curricular change she brought free coffee she so what I'm known for she made students the center of the law school experience hot chocolate also I should note and uh and there are so many many thanks to you for all that you have done for legal education for the school in 2009 after the election of President Obama olanta Kagan became Solicitor General of the United States a job that we'll hear a little bit more about and then she was nominated to and confirmed for the Supreme Court in the United States and she's been serving there since 2010 it's unbelievable six years Wow so now seventh unbelievable what now is Wow you're an old man Danny what's your next job no no no no huh what what is a typical day for you in your current life a typical day well one is sort of like another to tell you the truth it's very different from a Deans job and a Deans job one is not like another salutely but but in my job it is I mean there are the only difference being that there are days where we hear argument and days where we don't so when we hear argument a typical day is we go out to the bench in the morning and we hear a couple of hours of argument and then either right then or a couple of days later we go to conference where just the nine of us without clerks without any administrative aides or you know just the nine of us sit around a big table and discuss the cases and decide how we're going to come out and and then I go back to my office and occasionally there will be outside visitors of one kind or another maybe the foreign justice may be a state Supreme Court justice but really few and far between mostly I go back to my office and I do some more reading and I do some more writing so if you don't like reading and writing it's a kind of bad job but that's what academics do - reading and writing so soda without the teaching and and then I get up the next day and I do it again but mostly that's you know I think about hard legal problems and I read what people say in their briefs about those problems and then in the cases in the decisions that I'm assigned I try to write what we've decided about those problems but you know day to day it's kind of a you know it's a routine and you might even say it's a it's you know gosh like where's the excitement in that and I guess the excitement and the challenge just comes from the substance of the work that these are incredibly difficult incredibly challenging incredibly interesting and often very meaningful legal issues and and that I have the responsibility and also the privilege of adding my thoughts to the resolution of them well we are grateful to you for doing that and for writing in a way that we can understand which is not always true I'm going to ask you to step back and compare this job with jobs you've had in the past for example being Solicitor General United States and if you want to mention about being a Dean that's fine too what are the hard parts what are the what are the joyous parts what are the boring parts it's really different I mean it's a really different job from being Dean as I suggested before I mean Dean you wake up every day and you don't really know what you're going to do when what life you know what's going to be put on your plate and you decide such a wide range of kinds of issues right it's not just I mean I there are a lot of different issues that I decide but but as Dean you know one day you're thinking about legal scholarship and the next today you're thinking about designing a building and the next day you're thinking about how to put together a multi-million dollar budget and the next day you're thinking about some hard personnel difficulty and so you're required to be all kinds of different people doing all kinds of different jobs and I used to think that that was the best part of being daeun was that I got to exercise a lot of different muscles and find out how to do a lot of things that I had no experience in doing and and that I think you know gave me a lot of skills that I didn't know I had when I started the job and the job I have now is in some ways narrower than that I'm in the sense of I use the same muscles every single day so and and and although I learn every single day and I hope I continue to learn every single day in the job in some sense I'm always the same person when I wake up in the morning you know I'm always a judge doing the same things as opposed to when I was Dean where I felt like being a Dean had like lots of different roles in it and you just had to go from one to another to another to another as fast as you could how about Solicitor General so Solicitor General was maybe midway between the two but closer to what I do now is you know Monday was sort of like Wednesday was sort of like Friday although the job had a few different components to it the Solicitor General for those you know I did most people first years here raise your hand if you're a first year student okay so so sort of general of the United States it's really a cool job it's it's the person at the justice department who is responsible for all the appellate litigation of the United States and that means the person who decides when to take appeals from decisions that have gone against the government it means the person who generally supervises the appellate litigation of the United States government and the person who more particularly supervise as the litigation of the United States in the Supreme Court and and and argues a lot of cases in the Supreme Court so once a once a month every sitting that the Supreme Court has the Solicitor General goes up to the court and argues usually the most important case that month the case that the United States has the deepest interest in we're in resolving and so there are a couple of a few different components to the job there's the arguing component the kind of stand up at the podium and argue to the Supreme Court part of the job there's the part which has the Solicitor General as responsible for all the briefs that are filed in the Supreme Court so every brief comes to the SG and the SJ reads it and edits it and gets it into shape and and makes sure that everything it says is something that the United States is comfortable saying before the Supreme Court and and this and the SG decides what appeals to take as I said and more generally the SG Distan has to resolve competing views of what positions to take in both the appellate courts and the Supreme Court in other words you know there are lots of different components of the federal government many many agencies and departments and offices and often they have different views about what position to take or what reasoning to use in a particular legal decision and it falls to the SG ultimately to decide we're going this way or we're going that way or we're going to try to forge a compromise between seemingly inconsistent or competing positions and so that's a big part of the job to when one that I liked very much so there were different parts of the job but but again it was you know much more than being Dean sort of being the same person every day how about arguing cases versus deciding cases you just described part of the SGS role is deciding something but ultimately the SG is an advocate yeah and now you're not an advocate so which do I like better and which is harder which is what the features of each well you know in some sense the SDS trees job is harder I'm always reminded of this because the STD will stand at the podium or any other lawyer and I'm always reminded of how tough it is to stand there I mean we are a hard court to act at bars you in front of we're really active bench people usually call that now a hot bench we just bombard people with questions we don't give them a lot of chance to speak much less think nobody gets the opportunity to say here are the five major points of my brief or the five things that I want to highlight you know we basically take the view that we've read your brief we know what your brief says if you've been any good we know what your argument is and and instead we use the argument for I think a couple of different purposes one is that every brief or set of briefs does leave you with questions in your head you know here's the weak part of your case or here's just the hole that I see in your argument and I'm trying to figure out how you would fill that hole and it's an opportunity for the court to ask the lawyers like here's the problem with your position or here's the hole in your position and it's an opportunity for the lawyer to try to fix that problem or fill that hole and in that sense you know a lawyer standing before the Supreme Court shouldn't view questions as inconvenient interruptions they should welcome those questions because those questions are basically saying to do them here is what stands between me and a vote in favor of your side and here's your chance to tell me why I should go with you why I should be able to get to your side but but so that's one way we use argument and it's a hard thing for a lawyer to stand up there and you know literally and a half an hour a lawyer might get 50 questions and and be expected to basically answer our questions in a couple of sentences two or three sentences before the next question comes and the next question and the questions aren't ordered or organized they come from nine people each of whom has his or her different views about what he or she wants to hear about and the other way we use argument is as a chance to talk with each other so we don't talk with each other about a case prior to argument we only talk after arguments so that means that the argument is the first time where we get to hear what our colleagues are are thinking about a case and and what puts a premium on this to is the way we confer after argument because when we finally get to conference we have a pretty formal method of discussing and resolving cases so there are nine of us there are now eight of us but with a full court there would be nine sitting around a table and it would go by seniority chief justice first and then by order of tenure and each person would say what he or she thinks about the case and about the decisions to be resolved and will cast a vote that vote will be tentative but it will be a vote and your last on last so that means everybody has voted by the time it gets to me you know if your second-to-last it just means one other person hasn't voted so the people at the last part of the table at you know people have voted and and so I'm very cognizant of that and and realize that if if I'm thinking about a case in a certain way especially if it's a way that hasn't been well developed in the briefs then I only have one opportunity to sort of float that theory of the case before people start voting and that opportunity is a targeted argument and in and so when I go into argument I usually have questions that are designed really to be questions in other words to get the lawyer to to answer things that I think are really difficult about the case but there are also questions that are designed to be messages and those are messages to my colleagues about how I think the case ought to come out or what I think we ought to be thinking about when we resolve the case and so you know the the lawyer is kind of just the median it's the sort of like that you have to do it through a lawyer but you're not really talking with the lawyer you're really talking with all the other people on the bench that makes things incredibly hard for a lawyer so you have to be you have to be really good and we are really lucky we have now a fantastic Supreme Court Bar a lot of very skilled very able very experienced advocates are kind of used to the way we work and who deal with it really well so I think we all count ourselves very fortunate to have this sport but it's still just an incredibly hard job to be a lawyer in front of the Supreme Court but it's one reason we actually use a Socratic method in class is that being called on that's absolutely right and you know it's not the only kind of luring that anybody can do right so there are lawyers that that really don't do that today by day and we're gonna try it out and are very happy not to do that today by day but but for sure I mean litigating and and Lydia you know courtroom litigating whether you're before a district court or an appellate court or the Supreme Court I mean it really use Socratic method is a great great training ground for that and it's a great training ground by the way for for you know you know the people who I talk to every day are my colleagues and my clerks and and I think if you're a clerk of mine you're awfully glad that you've been trained in the Socratic method because believe me that's what I use and you know that's what a lot of the lawyers that you're going to be dealing with whether it's in a law firm earn and government office or anyplace else you know a Public Interest organization I mean there are questions that have to be answered and people you know people are going to ask you a lot of questions in the course of your work and you know you're going to have to be fluent enough in the language of the law to answer them and get to the bottom line pretty quickly yeah get to the heart of the matter you mentioned that sadly you are now an eight-person Court and the loss of Justice Scalia is still being felt very keenly I'm sure at the court it is felt keenly here he is a graduate of this school how and why was he influential well we do miss him just a ton and I miss him a ton personally I mean he was a great friend to me he was generous and kind I had known him a little bit because of when I was in in your place and he was a graduate of this law school and he came up to the law school on several occasions and was incredibly generous with his time as he always was he loved law schools he loved talking with students was one of the things that gave him a lot of joy but then you know getting to know him better on the court was one of I feel a great gift of the last six years both both learning from him because I think he had just extraordinary skills and and becoming friends with him I mean we did things out outside the court you went hunting yeah he taught me how to hunt which is sort of a story something you hadn't done before you know I grew up in New York City we did not go hunting on the weekends but but but he taught me and I enjoyed it quite a lot and he was really generous in expanding his group of hunting friends to include me we went out to Wyoming once for a few days and we went to Mississippi once for a few days and we you know often would would go down to Virginia to shoot Birds and yeah I had a ton of fun doing it both because of the activity and because I really enjoyed his and the other folks company but I but you know I learned a ton from him as a judge I mean nobody can and you sort of in comparable person and his intellectual abilities and his writing abilities but you know I feel like as though I've learned a lot from a lot of my colleagues and everybody imparts sort of their own lessons about how to do this job well but but but but but for sure I feel very privileged that I got a chance to see him work and what do I think will make him influential I mean I came up here last year and was a real honor for me you invited me to give the Scalia lecture and because I like conversations better than lectures I had John Manning sitting in that chair and John Manning and I just talked a lot about statutory interpretation and what Justice Scalia brought to it and the changes that he made in that field of the law and these are all first years and you're going to be learning a lot about this and your leg reg class but I think Justice Scalia profoundly changed the way courts read statutes and interpret statutes and and and and not just that he proposed a theory and then that it was out there as one of many theories but that his his textualist approach to interpreting law even for people who don't agree with everything that he wrote and don't go all the way to justices position it profoundly moved the the the way the court as a whole changed statutes so it sort of moved everybody in his direction even if everybody didn't end up in the exact place he did in terms of looking much more carefully to the text of the statute and in terms also of approach in with some greater degree of skepticism legislative history and other legislative materials that I think previously had mattered much more in interpreting legislation so I think there his influence has been really quite extraordinary and I don't think that that's going away I mean you can't predict anything about you know the you know what happens centuries from now but I think that that's going to have a very very long lasting effect in the way that courts understand and interpret statutes then I think you know the other thing that he is known for I have so different feelings about the other thing that he's known for its textualism and statutory interpretation and it's originalism in constitutional interpretation where you look back to the original meaning of a constitutional provision whether it was 1789 or whether it was say 1868 on the 14th amendment and you look back to what the meaning of that provision was then to the people who ratified it and I think that that that is honestly I think that that is going to I mean it's not a position that I espouse it's a position I disagree with and but I think even beyond that and now it's not the time to talk about why but I think even beyond that I think it's probably not a position that's going to have the kind of influence over time that his statutory theories had but at the same time I think that Justice Scalia did something that's profoundly important in this area too and what that is is that he put on the table very clearly and forcefully in a way that everybody had to deal with the idea that any constitutional Theory any theory about how to interpret the Constitution to be to be worth its salt and to be one that that we should understand as right has to deal with the question of judicial discretion in other words it has to impose constraints on a judge so that a judge can't sort of do whatever so that a judge can't just say my preference is this or or my you know politics is this or that the that a constitutional theory has to impose some sort of constraint and discipline to prevent judges from doing whatever they individually feel like or think would be good policy and and and I think Justice Scalia is very important in making clear the the role of an of these disciplining mechanisms and and and and basically I think after him any constitutional Theory to in order to succeed has to show you how it's going to discipline judges as well as how it's going to you know in connection with how it's going to produce rights decisions under the Constitution well I think he put it very forcefully by saying you may not like the idea of looking to the original meaning but tell me what's better and I think that threw the challenge right that's exactly right that he always said no constitutional theory is perfect all I have to do is show you that mine is better than the rest and I think one of the ways he said originalism was better than the rest was that it did constrain judges and prevent them from just sort of taking a case and and using that to establish their own policy preferences but there are other ways to put constraints and to discipline judges and I think there are other constitutional theories which can satisfy his demand for constraint and discipline without going back to everything that we thought 1789 you know maybe some people thought in 1789 many hundreds of years ago yes very good so what are the challenges of being on a court that's missing one person I mean you're an even number in addition to missing a very influential member how do you cope with this it seems to me the courts granting fewer cases this year maybe I'm right maybe I'm wrong looks like several important cases last year ended divided with four on one side four on another well you know I mean there's a reason why appellate courts have an odd number of members right I mean have an odd number of members so that they can make sure to reach decisions and so they don't have to confront the ever-present possibility of a tie tie does nobody any good I mean presumably were there for a reason we're there to resolve cases that need to decided answered hotly contested issues that need resolving and you can't do that with a tie vote now I think that the court has done well over the past year in operating notwithstanding that difficulty that had that handicapped or disability if you will of not having a tie breaking vote I think enormous credit goes to the chief justice in that who's really tried to forge compromise who's really tried to get us to keep to a minimum the number of cases where we just throw up our hands and say we can't reach a decision but that said there have been those cases cases where we can't reach a decision and there have been other cases in which although we did in the end reach a decision we did so only by narrowing them in a way that you you know took off the table the reason why we took the case in the first place in other words the narrowing them so far that it left undecided the real reason why we took the case and the real thing that's confounding the lower courts and you know over time that's a problem I mean the more months that that that the court is eight members the more the court has to deal with the possibility of not being able to decide cases at all or not being able to decide the issues that made you take the case in the first place so you know I think we're going to continue to work as hard as we can I think as I said that that the Chief Justice has really encouraged us to to do that and if all of us have tried hard to to find ways of resolving cases even which are not so apparent on the surface but is is that cost-free no it's it's absolutely not how do you decide what cases to hear this is the petition for certiorari process how do you do that so we have 8 or 9,000 cases petitions that come to us every year and of that we're probably only going to take 75 or 80 or 85 so it's really sort of one in a hundred every petition gets individualized attention each one is given to a clerk eight of the nine of us are in something which is called the search pool and it means that we all get the same memo from a single clerk who is assigned to look at a petition and analyze it and so you know the petitions are all doled out and a clerk will write a memo saying here's what this case is about here's the point here are the claims that the person raises there isn't any reason to take this or here there might be a reason to take this and here it is you know I have to say when you say one out of a hundred it sounds sort of enormous the cases that we talked about taken we put on something called the disgust list and then we talked about them in conference we probably talked about take talk about 200 cases a year or something like that and we and and we then take a little bit less than half of that and what we typically look for I mean I would say three-quarters of our cases are cases that we take before because different courts of appeals or state courts have interpreted federal law differently and and the idea is that even if the question of federal law is not particularly important in and of itself that it's intolerable to have one person in in one part of the country subject to a rule that another person in another part of the country is not subject to as a national law yeah that federal law needs to be interpreted uniformly so that all people in this country get the same federal law and so a lot of what we do was is just that we call it resolving circuit splits in other words there are courts of appeals often called circuit courts in different parts of the country and and the Second Circuit say though that's like New York New Jersey and so forth needs to if the Second Circuit comes out differently from the ninth circuit that's like California or again and so forth that difference needs to be resolved even if the question and dispute is not particularly important on its own terms so that is accounts for a lot of the decisions we take then then there are some that we take that sort of we take irrespective of a circuit split just because we think that they're super important and because the court that needs to resolve that issue ought to be the highest court in the land rather than some intermediate court as good as those are so for example if a court of appeals invalidates a piece of federal legislation the court will invariably take that case on the theory that you don't get to strike down an act of Congress finally and for good if you're a circuit court only the Supreme Court gets to do that some of my colleagues think the same thing applies if we strike down a state law that that too should only come from always come from your court right and so and then there were just some cases of a sort of random nature where you just look at and use you say there's no circuit split here but it's just such an important question we ought to decide it right now and so you vote on what cases to take how many justices does it take to take a case takes four and how many does it take to decide a case takes five that's really interesting so you can have some cases where some people really wanted the case and other people didn't want the case that's very interesting that's possible yes and what about sometimes you have cases that come to you not that way for example emergency stays and other kinds of cases that not very often and sometimes you even have original jurisdiction cases where you sit as a trial court yeah every once in a while I mean but we really don't I mean so in original jurisdiction case the typical kind of case of that would be one state suing another case another state but because we're not really set up to be a trial court usually what we do is we appoint a special master and that special master does what a trial court ordinarily would do and produces an opinion and then that opinion comes to us and we end up functioning more like an appellate court anyway so while you have been on the court for six years so you are a veteran you are still the junior justice I'm still as you do justice and the junior justice is the only justice other than the Chief Justice that has a name you're the junior justice okay well there's the senior Association is your socia justice that's something I need to know do you have special duties as junior justice yes yes I mean I the other than speaking last I guess that's not a special duty the there are three special duties of the junior justice the first is that the junior justice always serves on the cafeteria committee and that's thought to be some kind of not a good opportunity although everyone you know everyone's you know my colleagues and I have lunch together a certain number of times during the month after we have arguments and after we have conference and sometimes I'll come in and somebody will say who is our representative on the cafeteria committee as if they don't know and I say you know I am and they'll register some complaint there's too much salt in the soup or something like that and literally I get to go to Metiria committee meetings where the topics are sort of like what happened to the good chocolate chip cookies and I think that this is a way that the Chief Justice has you know when you get onto the court you've gone through this process and now you think you're an important person and this away looks like you're not so important after all you have to have to spend in Airway every month thinking about the chocolate chip cookies but you had experience I did I truly I know from cafeteria yeah and isn't it true that you introduced frozen yogurt it's true just like I introduced coffee I think I needed like just I needed a free coffee type idea so so there's now a frozen yogurt machine in the Supreme Court cafeteria and and still clerks come up to me every year and they say we hear you're responsible for the frozen yogurt machine and we just want to thank you so like I know no clerk has ever come up to me and say we hear you just wrote that opinion that's one of your special duties what are the other ones so the other one to be more serious is what I like actually I'm responsible for taking good notes on everything that we do during conference which is what we call the meeting where we decide matters because other people have to know what we've done you know the clerk's office has to know what we've done and the legal office the legal counsels office has to know what we've done so I take notes and then when we're finished with our meeting with with our conference all the other justices go away I stay in the room and the administrative staff of the court comes in and I basically relate to them all the decisions that we've made so the administrative staff can handle all the things that need to be handled once we've decided to take a case or to deny a case or to do something else so so that's that's good it's that you know it's it's you know it's not decision making but you know it just forces me to to focus on everything we do and this by hand you have really good handwriting yeah yeah so I do it by hand yeah problem I can't read my handwriting and hey I'll just interpret it this way uh-huh no problem and and then the third thing I have to do is open the door what door well there's a door to the conference room actually there are two doors to the conference room it really is a very inner sanctum kind of thing so there's one door that opens from the inside and then there's a gap of about 18 inches and one door that opens from the outside so it's like a double door and somebody will knock on the outer door and open that and then I'll have to get up and open the inner door and you might say why are people knocking usually it's because one of my colleagues has forgotten something think they've forgotten their notes or they'd forgotten their glasses would they forgotten their a cup of coffee or something like that and somebody is bringing the forgotten thing to them and I have to open the door every time so that's the rule only the junior justice opens the door I mean I could be like in the middle of speaking and and still pretty much if there's a knock on the door people would just sort of stare at me why aren't you opening the door but I have the majr justice for quite a while not everybody is the junior justice for so long like justice Sotomayor was only the junior justice for one year Justice Alito was not the junior justice for very long but Justice Breyer was the junior justice I believe it was for long time was over Tana I think it was eleven years so every time I kind of think I really do not want to go to the cafeteria committee meeting I think Justice Breyer went to the cafeteria committee meetings for 11 years so what do I have to complain about anyway but you have to open the door and take notes at the same time okay are the justices communicating with people outside by email or something or how do they tell people I forgot my glasses or yeah you know somebody usually will go to the phone and yeah in fact we don't bring in laptops or iPads or anything we're pretty old-fashioned when it comes to that so somebody will go to the phone and and call their chambers and say you know I've forgotten my glasses could you send somebody over you sometimes I do that - to be fair yeah you already made reference to the quality of the lawyers before the Supreme Court particularly the Supreme Court bar the regular to come often and some have criticized that it's a smaller group than maybe in the past has become very specialized so I wonder if you can just reflect on the quality of lawyering before your court and before other courts yeah well I do think we feel very blessed to have the quality of lawyers that we have and I know some people have written about that the number of lawyers who appear before us is getting smaller and smaller that there are many more repeat players and I think that this is one thing on which all of us agree is we see no downsides to this that we think I mean I think I'll say but I doubt anybody would disagree that the quality of lawyering if better lawyer ring makes for better deciding in other words if you have people who write good briefs and who are able to get up at the podium and really answer your questions understand what they are understand where you're coming from and provide the best answer that they can that when the arguments are fleshed out when the arguments are well made it it it really enables you to have confidence that you're reaching the right decision now you know if they're not I mean we work really hard to make sure that we do the work that the lawyers aren't doing but but it's not just easier if the lawyers do that I mean it's just it's it's it's it's better that then we then get to focus on comparing the arguments on seeing how the arguments interact with each other who who prevails on each and we're not trying to do the lawyers job to other kinds of cases though where those best most experienced lawyers are not involved well so you they have over time they have taken more and more of the cases it used to be true that you know only rich people could afford lawyers like that that's really not true anymore that most that a lot of the lawyers who appear before us are willing to take cases pro bono that their firms regard it as a kind of loss leader and that there are reasons for the firms to want to do this irrespective of whether they get paid for the individual litigation there are now law firms you know some law firms that there there are some sort of sides of cases that are often that law firms some law firms can't do that they're conflicted out of like if you are suing a bank write that a lot of law firms represent banks so that they're conflicted out of but there have arisen a number of law firms that essentially a number of really excellent lawyers who who are in much smaller firms that don't have those kind of conflicts so so very often consumers groups labor unions things like that will go to one of those appellate boutiques law school clinics have become a very important part of this right practice and there are some really excellent law school clinics so but given all of those things it's just less and less true that a person doesn't have access to really excellent lawyer and because of the inability to pay now sometimes still though they're I mean I think that there is one category of case where people are not as well represented as as they could be in in not all of those cases but in a good many of them and this is something that Professor Crespo has written about recently and then I've talked about before is that I think too often in criminal cases that criminal defendants are often represented by the same lawyers who who tried the case or who pleaded the the case out who you know the original lawyers in the case and and occasionally you'll see a lawyer like that who is absolutely superb but but too often they just don't have the kind of experience that that most people have when they argue before the Supreme Court and when they brief matters in the Supreme Court and one of the things that Professor Crespo has talked about is is you know different ways in which you could ensure that those kinds of cases are passed on from the lawyer who did the initial trial work to a more skilled more experienced appellate lawyer you have encountered many people in your lifetime who have legal training but for so many different careers what are the kinds of interesting paths that people have I mean they could become judges and litigators yeah anybody do anything else I've been one of the great things about law schools you can kind of use it to do anything and you know this is a Dean because you talk to a lot of this law schools graduates and you know that they do like a thousand different things so some are lawyers in the kind of classic sense and some are you know whether it's in a law firm or in a public interest organization or in government but some go into policy work in in different areas some go into business and become business decision makers I mean in the the world's open to you with JD right and that's yes a lot of the reason why some people go to law school and I think that there's nothing wrong with that with this notion of I'll go to law school it will teach me how to think it will prepare me for anything I want to do you know maybe I won't need to know this particularly GLE rule if I'm going to be a policy maker or a business person but this law school will teach me how to think and in a very rigorous analytic way and that that will serve me well no matter what I decide to do you know some people you know they simply I mean I was always sort of amazed at the range of things our graduates did and occasionally I would say I'm not sure what how law school equips you for this it equips you for this or benefits you in doing this it's like the people who were in Hollywood doing comedy writing you know that's like huh well but yeah I don't know one of the one of the great jobs that you think one of our graduates is a was one of the original writers for The Simpsons and there are now books on the philosophy of The Simpsons so I think he could get something huh okay but you know of found the Commissioner of baseball yeah is one of our alums a founder of the Sam Adams beer company one of our lungs quite a range people who are in internet startups and you're quite right people I wonder if you saw the same thing people in the government tell me that when you're sitting in a room and it's a policy question you pretty quickly tell who has legal training I always used to think that when I worked in the White House I always used to think you could hear the difference in the way the lawyers and the non lawyers talked about issues and it's not that only the lawyers have something to contribute but that I thought that the lawyers always were the ones who were able to kind of organize the issues and and we're able to you know bring a kind of rigorousness and analytic capacity to bear on them say we agree here we don't agree here let's focus in yeah there are many people who are starting law school right now some is JD some is el lms what is your advice what's your advice about law school about Harvard Law School about Cambridge what's your advice well you know I think the unbelievable thing about this law school is just how much it has to offer how many different kinds of professors and students and classes and extracurricular activities and so sort of the world is your oyster here I guess my advice is to try to sample things that you didn't know you were interested in I mean some people come into law school with passions and commitments and and that's fantastic but one of the benefits of this place is that there's an opportunity to do new things and to discover new passions and possibly to develop new commitments so I would do that I would get to know for every first year I would get to know try to get to know at least one professor well and not just like well you know occasionally I go in and go into office hours but you know try to really develop a relationship with at least one professor at the same time I think I would try to remember that that your peers the other students I mean this is an amazing group of students and and somebody who spends all their time in their libraries with their nose in the book is really missing one of the incredible strengths of the school which is talking to all your classmates and and learning from them and and not just to the classmates who share your interests and not just to the classmates who you think have the same views than you do but but but but really you know as as much to the classmates who you can't you don't understand how a person can have those views so that you can get to understand how and why a person has those views and I think that that's one of the the things that's really important in any academic setting certainly in this law school is you know that the Conservatives speak to the Liberals and the Liberals speak to the Conservatives and both speak to people who wouldn't classify themselves as either one of those and and learn from other people and learn how they think and try to see what's valuable in what they think and and you know even if you if you don't if you come away disagreeing with them all the more at least you understand what makes them tip which is an important thing and you might find that that you do agree with them on some things or where do you don't change your mind and that's a kind of great thing I think we have time for a couple questions so raise your hand if you want to ask a question there's one back here and there's a microphone coming your way and if you could identify yourself say your name and your role here hi this is Paula Eisner I'm a first year student at Harvard Law School I'm from Texas my question is a little bit long sorry about that empirically our current Congress is one of the least productive in our history traditionally the the Supreme Court has deferred to Congress to decide certain issues that do not fall under its own purview nowadays in current circumstances this expectation might not be realistic has this changed your views and the views of the court with regards to its own role and the balance of power between our government branches and has it changed the ways that you as a court or you as an individual make decisions and do you see any long-term shifts in the place of the court in American government you know I think it is not our job to decide whether Congress is the exact Congress we would want whether it's productive or not productive or productive in the right areas I mean it's just not in any way our job to evaluate Congress our job with respect to Congress is only to try to understand the legislation that Congress produces and and you know that goes back to the question that Dean Minow asked me about about Justice Scalia who played an important role in in the courts trying to figure out what statutes mean but you know you know we don't grade Congress we don't grade the president's not it's not a part of our job I think it's one of one of the really important things about judging is that you have to understand what is part of your job and what's not part of your job and what is part of our job with respect to Congress is when products of rational action that is legislation come to us and and have to be read and evaluated and interpreted so that people can know what those means and what rule of decision applies in a case and you know whatever else Congress is doing we try to do that to the best of our ability the question right here here's a mic coming up with narratives and identify yourself Thanks hello I'm Albert to do an LLM student from Switzerland thank you very much for this conversation Justice Kagan Dean Minow and I have a question about the importance of a clerk at the Supreme Court so I'm sorry of a clerk what's the importance of the clerk at the Supreme Court and what's the actual job they have to do so I have four clerks and each of us use our clerks differently so I can only say how I use my clerks I use them as sounding boards and I also use them as a you know basically when I try to decide a case I of course can talk to my colleagues about a case but but also I'll talk to my clerks about a case what usually they divide the cases up one person takes primary responsibility for a case one person writes me a bench memo just basically saying here's the way I think about the case here's the way I think it should come out then I'll read that all the other clerks will read it you know of course I've already read the briefs and everything that's been submitted to us then I get all my clerks in a room and we sit around a table and we just back things back and forth and we say how shall we decide this case and I know that the decision-making process is is is is improved for me if I get a chance to listen to other people's views and if I get a chance to depress them on things and to ask them questions and to have to answer their questions so for me that's one of the most fun parts of the job and also one of the most valuable is just you know talking about the cases and the issues and with a with a with a bunch of smart young lawyers who thought really hard about them and then you know they're also involved in the drafting of decisions now I do my own right in but but they will you know you know they'll typically give me a draft once I tell them what I want I'll say here's the way we've decided this then the full process kind of goes they give me an outline I look at the outline we talk about it we talk about what should be in the opinion though go produce a draft then I'll look at that draft and for me it serves as a kind of springboard to think about the issues more carefully and in more depth I'll I'll think about the draft I'll think about what works and what doesn't work in the draft also kind of use it in the way somebody would use a research memo that they've put together a lot of the citations and the materials but then I'll sit down at the computer and I'll start from page one and write my way through a draft and after that of course you know I have the Kagan draft but it's just a draft and what I do is I give that draft to my clerks and we have a kind of systematized way of having a couple of different rounds of edit it and I'll ask them you know just edit me like hard like do tell me what's wrong with any of the ideas tell me what's wrong with any of the organization tell me what's wrong with any of the style or how it can be made better and and and then you know we'll just go back and forth and try to make the draft as good as it can be so you got a lot from working with clerks and hopefully you know they learn a lot and they have a lot of fun but I know it improves the quality of my work it improves the quality of my decision-making I think and it improves the quality of my writing you are already known as being one of the most memorable writers on the court and that your prose is accessible and your sentence is a sparkle so who are you writing to well I always tried to write in a way that the ordinary people I mean not maybe not you try not to dumb down an opinion you're not writing to everybody in the world but I always try to write in in a way that even if you didn't know about a case and even if you don't have a law degree but but if you're a good and close reader and an interested in person that you can understand what I'm saying that you can understand why we've decided a case a certain way so you know and that's that sometimes hard because legal questions can be really Archaea and complicated and it's it's it's a challenge to be able to write about them in a way that ordinary people especially ordinary people without law degrees can understand and one of the things I think about actually when I do that is I think about what I used to do when I was a teacher in other words you know I would go into a class every day and I would say well there are these people in this class and and they're smart and they're eager and they want to learn but they just don't know all that much about the things that are on the agenda in this class how am I going to explain it to them so that so that they understand it but also so that they understand it in a way that sticks with them and and that's the same thing that I think about when I write decisions would you join me in thanking Justice Kagan

Channel: Harvard Law School

Views: 22,519

Rating: 4.8222222 out of 5

Keywords: Elena Kagan, Martha Minow, Harvard Law School, Harvard School Office of the Dean, HLS

Id: zxITcqE0orM

Length: 58min 53sec (3533 seconds)

Published: Fri Sep 16 2016