- Good afternoon and welcome
everyone to the Shannon Theater at the University of
Wisconsin in Madison. I'm Chancellor Rebecca Blank, and I'm really delighted
that you're all here at what is going to
be just a great event. I want to thank the Law School, and I want to thank
Dean Margaret Raymond for organizing the event,
and I want to thank the Honorable Associate
Justice Elena Kagan for her willingness to be here. I had the privilege of
getting to know Justice Kagan when we both worked in
the Clinton White House, and I am very happy
to welcome her here to the University
of Wisconsin. You're in for a treat. [applause] I suspect that many of
you in the room today were here almost
exactly a year ago to see Justice Sonia Sotomayor, and you may be
thinking to yourself, now, does the U.S. Supreme Court send a Justice to UW every year? [audience laughing] Well, not quite, but ever since Justice Thurgood Marshall
spoke here at UW nearly a half century ago,
we've hosted a number of members
of the Court. Chief Justice William Rehnquist, who's a Wisconsin
native, spoke here twice. Justice John Paul Stevens
gave our very first Fairchild Lecture, and
Justice Antonin Scalia gave a rousing
speech in 2001 that, this might not surprise you,
actually drew a few protesters. [audience laughing] The Justices who visited
UW have been consistently impressed with the Law
School's strong commitment to our law in action
approach to teaching, an approach that's grounded
in an understanding that a lawyer's role is not just
to know and apply the law, but to solve complex
problems in a way that improves lives and
strengthens communities. That tradition is
an important reason why our Law School
consistently attracts nationally renowned
scholars to its faculty. Dean Margaret Raymond
is one such scholar. Dean Raymond has a
deep understanding of the unique role of
a public institution in educating lawyers to serve
a very diverse mix of clients. That understanding
drives her commitment to help build programs
that introduce students from disadvantaged backgrounds
to careers in the law, programs like the James C.
Jones, Jr. Pre-Law Scholars Program, launched two years
ago, to give college freshman and sophomores from
traditionally underserved groups a chance to see what
the law is all about. I want to thank Dean
Raymond for her leadership, and I want to thank
our distinguished guest for what is surely going to
be a fascinating conversation. And thank you all for coming. Please join me in welcoming
Dean Margaret Raymond. [applause] - Thank you Chancellor. It's my distinct honor
to welcome you all today to this session, a
conversation I will be privileged to have with
our esteemed guest, Associate Justice Elena Kagan of the United States Supreme Court. Justice Kagan is a graduate
of Princeton University. She secured an
M. Phil. from Oxford, and her J.D. degree from
Harvard Law School. She is also a proud graduate of New York City's Hunter
College High School. [whooping from audience member] After law school, she
served as a law clerk, first for Judge Abner Mikva
of the U.S. Court of Appeals for the D.C. circuit, and then
for Justice Thurgood Marshall at the United States
Supreme Court. She practiced briefly in a firm, then became a law professor,
first at the University of Chicago Law School and
later at Harvard Law School. She served for four years in
the Clinton administration as Associate Counsel to
the President and as Deputy Assistant to the President
for domestic policy, and from 2003 to
2009 she served as the Dean of Harvard Law School. In 2009 she was
appointed and confirmed as Solicitor General
of the United States, and in 2010 was nominated
by President Obama to the U.S. Supreme Court
filling the vacancy created by the retirement of
Justice John Paul Stevens. She took her seat
on August 7, 2010. She has my tremendous.
admiration for many reason,
but two stand out. The first is the rich diversity
of the work she has done which makes her sort of a
legal renaissance woman, and the second is her steadfast determination,
commitment, and focus. She is truly a model
we can all learn from. Justice Kagan has
very generously and very tirelessly
given of herself throughout a very
full day of engaging with our Law School community, and we appreciate that
she's taken this time to be with U.S. and
to visit our campus. And she told U.S. this is
her first visit to Madison, so please join me in offering
her a warm Badger welcome. [applause] - Thank you. [applause] - Thank you. - It's really great to be here,
thank you very much. - Let's talk a little
bit about law school. You went to law school,
you taught at a couple of law schools, you
were the dean of one. Are there things you're glad you don't have to do anymore
in law schools? - Well, I love law schools,
and so I like visiting law schools, visits
such as this one. I actually, as you said,
I was Dean of Harvard, and I go back to
Harvard every year for a week and teach
a course there. I just got back from that,
so I've been thinking about teaching and how much I love
it and how I sometimes miss it. It's great, you
know, just to be back in an academic community
where, you know, people tell you what they think. There aren't all that
many people who are honest with Supreme
Court justices. They don't say, you know, that opinion you
wrote, it really stunk. So I go, especially to
faculties that I know, like Harvard and to
other places as well, where I can hear
a little bit about what people think about the work we're doing, the work I'm going. Where I can hear
what students think. I mean, I was just in
this week-long class, and what I teach is
I pick eight or ten of the cases that we've
done the prior year. And you would think that
nobody could tell me all that much about
those cases, right, that I've spent a lot of
time thinking about them. In some cases, writing
them, but every year, I'm struck anew by the
fact that you put students, law students, around
a table, and they have all kinds of interesting
things to say, and at least once a day I think, "Good gosh, why didn't I or any of my
colleagues think about this case in just the way that person
thought about this case?" So, I feel, I love going
back to law schools because I feel as
though I learn things about the Court, about
the job we're doing. And I just like being in
the academic environment. I think students are
really energizing. I think faculty members
are smart and perceptive about some of the things
that we're doing in Washington. So I do like
these sorts of trips. Now, you know, that said, you're a dean.
I was a dean. There were moments
where I think, "I'm really glad
I'm not there," you know? [laughter] So, and I'm really happy with
my current job, obviously. [laughter] So I don't spend all my time
thinking about how I'd trade back, but it's nice to get to some law schools a few
times a year, three, four, five, whatever it is I do,
and to talk with people. - Let's talk a little bit about how you came to be
where you are. Your father was a lawyer. Did he bring it home? Did he talk about work? Did you think, I want
to do what he does, or was that not a big influence on how you came to
be where you are? - You know, it's a funny thing. I've talked with my colleague,
Justice Sonia Sotomayor, about this, and I don't
know if she told this story when she was here last year,
but when people ask her, why did you become a lawyer,
she talks about how in her childhood she
watched Perry Mason episodes. And for those of you who
are not of a certain age... [laughter] <i> Perry Mason</i> was this TV show where there was a trial lawyer
who was the main character, and every week was another
case, and every week he would go to trial
and sort of pull some magic rabbit out of a hat
so that a case that he was clearly going to lose, he
instead was going to win. You know, he discovered
some new piece of evidence, or he did some great
cross examination, and it was all very
exciting and glamorous, and you could see how
somebody watching it could think, I want to be a
lawyer, I want to do that. And I've said to
Justice Sotomayor, I've said, you know,
my father was a lawyer, and I knew that law
was not<i> Perry Mason</i> . [laughter] You know, quite the opposite. My father actually was the kind of lawyer who never
went to the Court. He actually thought it
was kind of a failure to go to Court
because it meant that you hadn't solved the problem
by other, better means. And now I really understand what gave him such incredible satisfaction
in the work that he did, and I also understand,
better than I did then, the extraordinary value
of that work because he was
a real problem solver. I mean, he wasn't somebody
who went to court, much less trial courts
where he was pulling rabbits out of hats, but he worked
to solve people's problems, and there is very
little more valuable one can do in the legal
profession, or in life. But then, I have to say,
I was not mature enough, really, to get that,
and it seemed a little bit staid for
my taste, actually. And I went to law school
for all the reasons people tell you
not to go to law school. I went because I was trying
to keep my options open, and I couldn't quite think
of anything better to do. And I thought of law school
as a little bit of a holding action, but then it turned
out I loved law school. I got there and I thought
that the questions were fascinating and challenging,
and I thought that the combination of that
with the ability to, you could see how lawyers could do things in the world, could improve communities,
could better people's lives. So you had both the
practical, you can make a difference with this,
and also the more intellectual, you know, this
is just really interesting. And the marriage of those two,
it was pretty lucky, given how little I
had thought about why I was in law school,
but I knew pretty much straightaway that I had
landed in a good place. - I know you've said that your
mother taught you to write, and that every fifth grade
paper was of supreme importance. Talk about her influence
on you a little bit, and how that sort of,
what you took away from her that stays important to you now. - Well, I'm going to
answer that question, but I'm going to preface
it by letting the audience in on this little secret,
maybe some people know. You said, she's a proud graduate of Hunter College High School. We've know each other for
how many years, Dean Raymond? - [making mumbling sounds
and laughing] We've known each other fro 45 or so years. - Could she not have done that? [laughter] - Now we're not that old,
so that suggests that we met each other really
young, and indeed we did. We met each other in
junior high school, and we were 12, 13, something like that, and we were great friends
in junior high school and high school, and we
went to school together, we lived very near each other, I was in your apartment a lot, you were in my apartment a lot. So when you ask me a question
about my mother like this, part of me says, well
you know my mother. [laughter] - A formidable woman, but
I thought maybe you'd talk a little bit about her with
everybody else who's here. [laughter] - Okay, well, formidable is
a good word for my mother. The gender roles in my household
were a little bit mixed up. Because my father was
a very gentle man, but my mother was formidable. She was tough! And she was very demanding. But she was not the easiest
mother because of that. I have known people
with easier mothers. [laughter] But, boy, my mother's voice is in my head all the time because she demanded things, but she taught you to
demand things of yourself. My mother had this
really strong belief that you could do
things well or badly, and you could show
commitment and discipline, or you could not, and that
the way to live your life, your personal
relationships, your jobs, your schoolwork,
whatever it was, was with a sense of
responsibility and discipline and commitment and
hard work and effort. And, you know, it's not
that I always lived up to those things by any
means, but I'm awfully glad that there's this voice
in my head, which is my mother's voice,
saying those things. So, pretty important. - What about other mentors? Teachers, employers,
people who made a big impact on your life. - I feel incredibly lucky. I'm sure this is true of-- I kind of think basically
that nobody succeeds in life without other people. Like, the idea of
doing it on your own is pretty ridiculous,
and I can look at every stage of
my life, and say, here are the people
who really helped me, who helped me understand what
it was to do this thing well. And I can do that in law school, and I can do it
when I went to a law firm and there were particular
partners who I dealt with who really modeled
what lawyering was for me. And then when I went
to the University of Chicago, and I didn't know anything
about teaching, or about how to construct a scholarly
career, there were particular people who really took me
under their wing, and said, here's how you can be a scholar,
here's the way to teach, and it's not like anybody
held the key as to any... But listening to these
people made a huge difference to me in figuring out
institutions and what it took to be successful
in institutions, I mean, all the way
to what I do now. But I'll just sort of
take a pit stop in the Solicitor General's Office
where I walked into that role. it's a role that preeminently
means getting up at a podium and making arguments
to an appellate Court. I have never done that
in my life before, and there were people
there who had been in the Solicitor General's
Office for decades who basically took me in hand and answered every question I had
and then answered some questions that
I didn't know I had and sort of gave me a sense
of how to do this thing. And I feel as though
that's happened, really, at every stage. And for me the lesson
for law students, and I know a lot of this
audience is law students, is the best thing you
could do is put yourself in a position where people
could give you great advice because, just inevitably,
as you go through a career, there are going to
be people around you who know much, much more
than you do. And a lot of them will want you to succeed and will want to be able
to mentor you and advise you. And sometimes I think
it's just a little bit hard to ask for that
because it looks as though, "Well,if I have to ask,
it means I don't know, and if I don't know, they'll
take that the wrong way." They'll say, "Oh, why
doesn't she know that?" But I think most people
are not like that. They're actually really glad
to be a mentor, and an advisor, and a helper, so making yourself a little bit vulnerable
and asking the questions is kind of the best thing
that you can do. - Well that worked for every
job but this one, right? You walked into
the Supreme Court, and you had not
been a judge before. And that's pretty unusual
in this day and age. - Yeah, I'm the only one. The only one on the
current Court, yeah. - Being a judge for the
first time as a Supreme Court Justice, is
there justice school? How do you learn to be a judge? - There is no justice school. This is actually a pretty
interesting thing to me because immediately I was asked to
take part in these seminars. For every other kind of
federal judge, trial judges and circuit court judges,
they bring you to Washington and they do
do judges school, and it's like, it
varies depending on whether you're on the
district Court level and the appellate Court
level, but it's like here's how to do
the various things that you're going to have to do. And there was no justice school. It's very much they throw you
into the deep end of the pond, and say, swim why
don't you, you know? And, it was sort of
funny, the first year I kept on being invited to speak at these new judges
seminars and conferences, and I was like,
"I don't know anything."
[laughs] "Why didn't they do this for
me?" was my basic question. It's not that people
are unhelpful. I mean I think people
actually want to be helpful, your colleagues, but I think
everybody is very anxious to show you that from the
moment you enter the institution you are a full citizen,
so I think that that's, the Court is one place
where people actually, you know, they don't often
volunteer advice because to volunteer
advice is to suggest that they know more than you do. And actually I think that
people really want to say to a junior justice, you're
one of us, you have the same vote that everybody else has,
you're the same justice. So, of course I did
ask a lot of people about a lot of things,
but in this job a big part of it was trying
to figure it out for myself. I made a decision at the
beginning of my first year. I had three of my four
clerks had clerked in the prior year for
three other justices, and whenever I came to
something where I thought, I don't know how to do this,
I'm not sure what makes sense, I would say to these clerks,
well, what did your bosses do, and then I would get
three different answers. Which, number one, suggested
to me that there was no one right way to do it
which was helpful in itself. And also, you know,
gave me some sense of the universe
of possibilities. So the first year I
spent a lot of time the first year just sort
of trying to figure out some of the mechanics of
the job because you have to figure out how you learn best,
how you digest a case best, what are the inputs that you
need to make a good decision because everybody learns
things in different ways. And so you have to
sort of figure out what are the processes that
you need to put into place in order to make sure that
you're making the right decisions, casting the right
vote, and then, of course, what are the processes
that you need in order to write the best
opinions that you can write, as well, and to do all the other various aspects of
the Court's work. So a lot of it was trial
and error my first year, and some things succeeded
and some things failed and then I would just
do it differently the next time around, but
I would say by the end of the first year I had the
processes pretty down pat. And then as each year
goes by, you just learn more and more about
more and more issues. I mean, you said in your
introduction, that I had written on a great
variety of things, in some respects you
just have to, you know, your assignment is one
day on some criminal case and one day on a
Constitutional Law case and its one day on a
tax case and its one day on an electricity
regulation case. And one of the fun
parts of the job is just to learn
about a lot of areas of law that you didn't
know anything about to start with so that,
even once you basically get the hang of
being a justice down, the learning curve is still
high because there's just so much that you didn't
know about so many subjects. - And that's gonna
keep going for a while? - You know, that's
gonna keep going for a while, and I hope forever. My predecessor, John Stevens, retired when he was 90 years old after having been on the Court, I forget whether 35, 40 years, something, you know,
a long long time, and one of the things he said
was that he loved the job because he was constantly
learning something new. And to be able to say
that at the age of 90 after having served on the
Court for almost four decades and to say, you know
this week I learned this amazing thing, you want
to be that person, right? And partly it's
personality and the fact that he had a personality
that was just always searching for new things, but partly
it's the nature of the job. You kind of can't help
but learn new things because new problems
keep being thrown at you. - So you were a law clerk
at the Supreme Court a while ago, and then
you were an advocate at the Supreme Court. Did those things equip
you in any unique way to bring something to your
job that maybe is special or helps you do it better? - Well, we were law
clerks a year apart for the same justice,
Justice Marshall, and one of the things that
was really interesting to me when I got to the Court
was that there was, and there was almost 25 years
in between those two things, the year I clerked and the
year I arrived at the Court, and here's the most surprising
thing about the Court is that very little changes. [laughter] In those 25 years, I mean,
I had to have my memory refreshed a little bit,
but all the processes were the same, all the
procedural rules were the same, the way the Court
operated as an institution was largely the same. Now this is an amazing thing, it's not just any
25 years, right? This is a 25 years in which
there was a communications revolution, a technological... [laughter] Eh, not really at the Court. [laughter] So, I mean, to the
degree, even the people hadn't really changed
all that much. [laughter] The Justices had, the Justices
had, but on my first day on the Court, this is a
digression, I'll come back to your question, I promise. The Chief Justice took me around
to all the various offices and introduced me to
people in the Clerks Office in the Legal Office, in
the Publications Unit, in the Library, all
these different offices. And almost invariably
there was someone in each of those offices who
said, oh, I remember you from when you were
a clerk [laughs]. [laughter] And I'm thinking, oh gosh,
I hope I was okay, you know? [laughter] One doesn't really like
to be defined by one's 27 year old self, but the
Court changes very slowly. And so, I think
actually being a clerk was extremely helpful
to being a justice, just in terms of the
way the Court operates, the way the processes work,
and then being S.G., all that the Solicitor General does
is think about the Court. I mean, sometimes I think,
basically my job as Solicitor General was
to persuade these nine people of a particular view, and
the only thing that changed when I became a Justice
was that now I only had to persuade eight people, right? [laughter] But then, you know, all the S.G. does
is think about the Court and think about
individual Justices and what their views are and how their views might relate
to a particular case. So, it prepared me very
well in that sense. I almost think that
there's no better job, even more than an appellate
judge in a circuit, in some ways, there's no one
who thinks about the Court more than the Justices,
you know, then the S.G. does, or as much as the
Justices as the S.G. does. The other thing, honestly,
that being an S.G. has done, is it makes you realize
how hard the job of the people at the podium is. So, I mean, in general,
arguing in front of courts is difficult, but in front
of the Supreme Court, it's pretty much as nightmare
because you have a lot of very, very active people
who ask a ton of questions. I would say in a
30 minute argument, maybe 50 or 60 questions
get thrown at you. It's very rapid fire. You have to have really
thought through stuff before you get to the podium. Often the Justices aren't
really asking you questions, they don't really care
about the answers you give. They're making points
to their colleagues. I say this not in
a pejorative way. I do it all the time,
I think it's actually an important part of the process that we're talking with
each other up there. But it makes it extremely
hard for the lawyers who, you know, really do want to occasionally
interject some point. [laughter] And so, you know, honestly, being S.G. just made me realize, boy
these people have a hard job. And, you know, to the extent
that I remember to do so, I think it's a good thing
to realize you know, let's give these people
a little bit of a break... - That being said, are
there things you see in the performance of
lawyers who are appearing before you that you either
think, "Man, that was good," or, "Ooh, don't do that,"?
- Sure. - Is there sort of good
and bad news for the folks in the room about how to
be a good appellate lawyer? - Yeah, I'm not sure I could put it on a postcard,
but absolutely. I'll say first
we are so, so lucky. We have an extremely
high-caliber bar. One of the things that's
changed, actually, since we clerked there, is
that a lot of the arguments are done by repeat players
who have been there before who really know the court,
who know the process of arguing before
the court, who know what it is we like, who know
what they should be doing and what they
shouldn't be doing. So, in general, we have
really high-caliber folks. One of the things that
seeing really good lawyers tell you is that there is no
single right way to do this. I was once coming back
from a circuit conference, I think it was the Sixth
Circuit Conference, and there were two
lawyers on my flight, and our flight was
delayed, and we ended up hanging around and
talking with each other for a long time about
Supreme Court arguments. And these were two
of the best lawyers that there were at
the Supreme Court, but very very
different in style. And one of them described it as, one was a hot lawyer
and one was a cold lawyer. Like, one gets up to the
podium, and the place just like throbs with energy. Everybody leans forward
in their chairs. He just, there's so
much sort of tension and energy in the air,
and then he's tremendous and knocking
everything out of the ballpark and arguing with you. The other is calm, cool,
and collected as can be. And, just sort of cools down
the temperature of the room and is Mr. Reasonable Man,
and surely you have to believe everything he says
because he says it in such a calm kind of way. [laughter] Sort of slow, you know. And they're nothing
like each other, but they are both tremendous, tremendous
advocates. So a lot of it is personality. A lot of it is just
what feels comfortable. But that said, I guess a couple of the things
is, you gotta listen to
the judges, you know. Everybody goes up there and they wish they could repeat
their brief. And it's hard not to, right? I have these five great points that I need to be able to make. But the Justices, we're
all very well prepared. We've all read the briefs. We know your five great points. We're not really interested
in your five great points. [laughter] And the ability to sort
of understand that. To say, you know, the
judges are asking you super hard questions,
and they're almost always asking you questions that are
at your cases' weakest points. And there's a tremendous
temptation to just try to answer that
quickly and go back to what you think the
strongest points are. But in fact what you have
to do, they know your strong points, they've
read your briefs, what you have to do is
really have the fortitude to engage the weak points
and not to just sort of try to slough that off
and go back to a place where you're most comfortable. So I would say that. I would say to treat the
things as a conversation. There is no orating
at the court. Nobody has any patience for it. Nobody has much
tolerance for it. But if you can get up there
and treat us as equals. I mean, you have to be
respectful to us, of course, but treat us as equals and get
into a serious conversation with us about the law and
the various fine points of the case, I think people
really appreciate that. And, I don't know, would
you add anything else? What do you think? [laughter] - Until I start my career
on the Supreme Court, I'll probably
reserve my opinion. - Okay, well those are the
things that come to mind. - It's hard to know how it
looks from where you sit, but many of U.S. today
find our communities and our conversations
increasingly polarized, angry, and fraught with conflict. Do you see a way
forward to sort of mend some of the rents in
our divided society, and do you think the
Court plays a role in facilitating some kind of
comity in civil discourse? - Well, I don't think, I mean,
I guess there are not all that many people, I think,
who don't look at the place we're in and see
us as very divided on quite a number of issues
and see the discourse as being pretty hot and, you know,
often depressingly so. I don't think that I
have anything very useful to say about that in our
general political system. I think I have thought about
it with respect to the Court because the Court
is also an institution that people sometimes see,
certainly can see, as divided in some sense,
as mirroring some of the divisions that we see in
our broader political system and in our broader society. I think we're doing
a good deal better than some other
institutions, but I think that it takes hard work and sort of an awareness
of this issue, and I think we should be
aware of the issue. I mean, look,
we have a job to do, and the job is not to
model civil discourse for other institutions
or for society generally. The job is to decide cases
and that's your principle job, and you have to decide
cases as best you can as opposed to sort of
saying, "Let's be the model for other governmental
institutions. But I think that there are times when you can decide cases responsibly, consistent with your
Constitutional responsibilities in ways that also
reflect some awareness of the dangers of division and the value of consensus and collegiality
and where you can-- you can't always-- but where you can, compromise. And those are I think
important things for the Court to think
about, how we can achieve more consensus, how
we can be more collegial, how we can compromise
out some issues that at first, at first seem
impervious to compromise, how we can reach some
common ground even where
you originally thought that there was
no common ground possible. And in some ways, we've
had to to do that the last couple of years. So the last couple of years, after the very unfortunate
passing of my colleague, Justice Scalia, and really the better part of
two terms for the Court, we've had an eight person Court. And that meant that there
were some fair number of times when if you just sort of did
things without thinking about
consensus and compromise, you would find yourself
stuck in a four-four tie. And none of us wanted for
that to happen very often because it would look as though
we were a riven institution. And it would look as though we were incapable of getting
our work done. And so I think we all
made a very serious effort to try to find common ground even where
we thought we couldn't. And it sort of forced us
to keep talking with each other. Right? When you have a nine person
Court, you can just say, well we have a majority and
then there's a minority, and that's the end of it. But with eight people
sometimes you can't say that. Sometimes you're split, and
the only way you can get unsplit is to keep talking and
keep talking and keep talking some more, and to find
some way of reshaping or reframing a question
or reframing the debate so finally you can
find common ground. And we had to do that a
bunch in the last two years, and the consequence was that
we talked to each other more, and that not infrequently we found ways to reach agreement that
we wouldn't have expected when we started
the conversation. I think that that
is the silver lining of the two years with
an eight person Court. And I'm actually hopeful that the effects of it will continue now that we
have a nine person court in the sense that, you know,
all of us will remember not to stop the
conversation too soon. And all of us
will remember the value of trying to find a place where we can agree or where more of us can agree. And it doesn't always work. Sometimes it's
not going to work. Sometimes the only way to
reach greater agreement is to answer a question
nobody cares about answering. And, you know, sometimes
people are going to say, look, we're divided on this,
but it's more important to actually solve the problem,
divided or not. But I'm hopeful that as
we go into the next term, and the next term, and the next term that some of
these habits of mind that I think
we sort of developed over the last two years
will continue, and that people will remain
alert to the values of sort of like keeping talking and finding areas of agreement, consensus, compromise which weren't completely obvious
at first. - Will it change how you write? Is it harder to set down
and write the angry dissent when you know there's a
little more work you could do to move in a sort of more
conciliatory direction? - I think it has changed
the way we've written in these last two years. It's changed majorities and
it's changed dissents, right, because you know the majorities tend to do less, so the dissents don't have quite the same kind of thing
to complain about. Maybe there aren't any dissents because we've reached
complete consensus. Maybe there are,
but the majorities have tended these last two years
to do less, and so, there's not the kind of
anger on the other side. You know, I'm speaking
in generalizations now, and there are
exceptions to that, but I think one of the things that the eight person Court has done is to change the way
we've dealt with each other, to change the degree to which
we're trying to find some areas of common ground,
and the result of that is, in fact, to do less, and
sometimes you have to do more. You know, doing less is not
invariably the right answer, but sometimes it is, and when you do less,
there's less anger. - So you mentioned losing
your colleague Justice Scalia, but what that also
means for you is that for the first time
the configuration of the Court you're on
has changed, that you have moved
out of the junior seat and you have a new colleague. What does that feel like to
sort of shift the status quo of how things have been for
a while and have them change. - Well, can I first
answer that question at the most prosaic level because it means that I don't have
certain responsibilities. [laughter] Because there are certain jobs that are only
the junior justice's. So what are they? The first is you have to
take notes in conference so that you can then pass on
all the decisions that we... Because nobody comes
in the conference room other than the nine Justices. Nobody from the clerk's
office, none of the Justice's personal clerks, nobody from any of the offices
around the building. But they all have to
know what we've done so they can report
it to the world, so that they can
do all the various administrative things
that need doing. So it's the job of the junior
Justice to take good notes and to be able to
report to everybody what it is that we've done. And literally, at the
end of conference, everybody gets up and leaves
except the junior Justice and the junior Justice stays
behind and all the Justices chairs are then taken up by
people in the Clerk's Office and around the building who
need to have this information. So that's the first thing. That's actually the
most substantive thing that the junior Justice has
to do, believe it or not. The second that thing
that the junior Justice has to do is open the door. [laughter] Now you wouldn't think that this would be an assigned
task, right? - Life tenure required.
[laughs] - Exactly. But, as I said, there
are only the nine of us in there and occasionally,
somebody has to give us something,
like suppose an important phone call has come in,
or, more often, suppose somebody
left their glasses in their chambers... [laughter] Or left their coffee,
or just can't do without some particular file, and
so they'll make a call from the conference room, and somebody will come
and knock on the door, and the door is very--
you'd think it's just a door, but, no, it has to be two doors. It's like a double door
with a few feet in between so that really nobody can
enter the inner sanctum. And the person who's
bringing the cup of coffee, or whatever, knock on one door,
you'll get up, you open the other door,
take the cup of coffee, deliver
it to your colleague. [laughter] This is, can I tell you
how seriously people feel this is the job
of the junior Justice? [laughter] This is the best way I
can describe it to you. Earlier this year, I tore
something in my foot, and I was walking around
with one of these boots, you know, and I was walking,
but I wasn't walking easily because I was like clumping
along with one of these big plastic thingamajigs
on your foot. And still, somebody
would knock on the door, and everybody would just
look at me, you know? [laughter] So now, so now it's
not my job anymore, but still, after
seven years, now, so the last month, somebody
will knock on the door and I go, like this, you know? It's become a kind
of conference joke, is like, how much
Elena flinches, right? [laughter] Alright, the third thing that
the junior justice has to do is to be on the
cafeteria committee. Now, this truly is a
form of hazing, alright. [laughter] This is like,
you are the person who, one of your colleagues says
there's too much salt in the soup, and you're supposed to
report that to the cafeteria. [laughter] And then once a month or so
you go to cafeteria meetings, and you think you've
just been confirmed to the United States
Supreme Court-- [laughter] And you think you're
hot stuff, right? And I think that this is
the reason why they do this. You think you're hot
stuff, and they put your on this cafeteria committee,
and you are sitting there, and you are having a
conversation about what happened to the good recipe for
chocolate chip cookies. [laughter] So, I don't have to do
that anymore either, yeah. So I get all these
responsibilities, yeah. But here's the thing, I liked
being the junior Justice. I'll tell you why, not
because I loved being on the cafeteria committee,
although it is a very dean's kind of, you
know, thing to do. Like, as a dean, you're
very used to thinking about things like
cafeterias, right? So I had quite the success
on the cafeteria committee. [laughter] I figured, if I were like
approaching this as a dean, I need a signature
item, and I decided that the signature item was
a frozen yogurt machine. [laughter] And still, seven years
later, people are thanking me for the frozen yogurt machine. [laughter] But, here's why I actually
liked being the junior Justice, why I miss it a little bit. So the way the
conference works is that the Chief
Justice starts off. He kind of defines the issues,
he tells you what he thinks, all the comments,
all the votes, can be reversed, they're tentative, but you know, you're committing to something. So you say, here's the
issue, and here's the way I think about it an
I vote to reverse. And then it goes around the
table in seniority order, and nobody can speak twice
before everybody speaks once. And so the last person
in the more formal part of the conference proceedings... I mean often there's an
informal conversation that breaks out afterward, but
the last person in the more formal part of the proceedings
is the junior Justice. Now if I had to choose between
being first and being last, I would be first, but last
is a much better position than eighth, or seventh,
or sixth or something. Because last gives you the
ability to kind of listen to everybody, to try to
draw some conclusions about the whole ball of
wax, to try to think about where the fault lines
are, to try to synthesize certain views and
thoughts, and to sort of do a little bit of a wrapping
up, but more than just a wrapping up but
sometimes to try to move the conference, all of whose
views now have been heard. And I thought it was, you
know, other than being maybe first or second or
third, where you can really define the conversation
a little bit, it was the best role to be in. And so this last month, I've, like, said my piece, and I've sort of thought,
okay, that's... And then somebody
else starts talking. [laughter] And it's been very
disconcerting, actually. [laughter] Why is somebody else
talking, you know? I just wrapped up. [laughs] [laughter] So I sort of miss that,
actually. - So have you ever seen
the movie<i> Men in Black</i> ? You know, Agent Zed to new
Agent J, time to put it on, the last suit you'll ever wear. Supreme Court
Justices don't usually leave for other jobs. They often don't retire. You've done a lot of
different kinds of work, and my sense is
that's been a source of great joy and
satisfaction for you. How do you feel about
having life tenure in what is likely to be the
last job you'll ever have? - Well, it's good thing
that this is a good gig. [laughter] Because, you're right,
in general I have had a lot of different jobs
in my career, and that was one of
the things I liked. And you know,
different people like different things
in this respect. Some people find one job and
that's where they're happy always, but I sort of liked
the fact that I sort of hopped around a lot and did
a lot of different things and felt as though-- I always felt as though
when the learning curve started flattening out,
it was time to find a new job. Because I like a little bit,
sort of, doing something completely different and
feeling as though the learning curve is almost vertical
and the challenges that that creates, and
it's absolutely right that I will never have
that again, right? That the job is the
job, and this is a job I've committed to,
but it does not, I have to say... I mean, you're right that
I've always lived with a certain kind of
variety, but this does not seem like a sacrifice. [laughter] I mean, first off, it's an
incredible responsibility to do this job, and
you have to approach it and keep on approaching it
with an awareness of that responsibility,
that for whatever reason you've been put in this
place which does have an enormous impact on the
development of the law and the development of
the law means that it has an enormous impact on
the way our country goes and the individuals
within our country. And so I think whatever... Whether you feel like, "Ooh, I feel like doing
something new or not," you know, too bad at some point. I mean, this is
a serious responsibility, and you should treat it as
a serious responsibility and give it your all every year until you have to stop. But I don't want this to be,
like, this is a big sacrifice as I said because this is the
world's most interesting job if you're a lawyer, right? I mean, if you were
going to land in one job and somebody said, well
you are going to do this for some number of
decades, I mean, for me, this is the job I'd pick,
and it's an incredible privilege to be doing it,
and also, now not every day, but on most days, an incredible joy. And so, no complaints here. - I think we're out of time. Please join me in
thanking Justice Kagan for an amazing hour. [applause] - Thank you very much.
