[APPLAUSE] DEAN MINOW: Thank you. Thank you. Good afternoon! [MIXED REPLIES FROM AUDIENCE] Let's try that one again. Good afternoon! AUDIENCE: Good afternoon! DEAN MINOW: Thank you. Well done. Well, it's a real delight
for me to welcome you all and to welcome back Dean Kagan-- JUSTICE KAGAN: "Justice," now. DEAN MINOW: "Justice," now. [LAUGHTER] And also, at a time,
"General" Kagan. So, how's the campus look? JUSTICE KAGAN: It
looks fantastic! Wow! The last time I was here, I
think that wing, on Pound, had not been taken down,
so you couldn't really see this building. And now it looks tremendous. And the landscaping's all in. Before it was like
a lot of fences. So good job, Dean! DEAN MINOW: It's, uh-- [LAUGHTER] We now have "Half Pound." We took down part of Pound-- JUSTICE KAGAN:
(LAUGHING) "Half Pound!" That's fantastic! [APPLAUSE] DEAN MINOW: And
this is a building that was designed by Dean Kagan. Who likes the building? [APPLAUSE AND CHEERS] Wow. Down to the carpet! JUSTICE KAGAN: A lot of it was
paid for by Dean Minow, so-- [LAUGHTER] DEAN MINOW: Still being paid-- JUSTICE KAGAN: I
thought that this was a fair exchange of labor-- --you know, division
of labor, you know. DEAN MINOW: Still
being paid for. Still being paid for. But you picked out the carpets
and the furniture, and-- JUSTICE KAGAN:
Now, if they don't like the furniture,
who you might call-- DEAN MINOW: [LAUGH]
That's a good allocation. So I'm very, very
grateful that you're here, and you're willing to
answer some questions. I'd like to, actually, take you
back, before the current job. You've had a lot
of different jobs. You were in private practice. JUSTICE KAGAN: I used to
change jobs all the time. DEAN MINOW: There was
a time that you told me you'd never been in a
job more than four years. JUSTICE KAGAN:
Until I became Dean. That was the longest
I was ever in a job. And I was only in
that for six years. DEAN MINOW: Couldn't hold a job. JUSTICE KAGAN:
Couldn't hold a job. [LAUGHTER] DEAN MINOW: But you were
in private practice. You were at the White House,
in the White House Counsel's office. You were Deputy
Chief of Counsel. You were described as the
White House all-purpose brain. You, uh-- JUSTICE KAGAN: That was a
specific job, in the building. [LAUGHTER] DEAN MINOW: You were a
professor, and you were a Dean. You were, then, Solicitor
General of the United States. And so, one question
I have is, what do you draw upon, in your current
work, from those prior jobs? And then, in particular, from
the Solicitor General's role? JUSTICE KAGAN: Hmm. Well, I draw a lot on being
a professor, being a teacher. I mean, we can talk about
this in more detail-- when I write opinions, when I think
of what kinds of questions to ask, I think about the way
I would prepare for class, the way I would explain legal
concepts to people who didn't know a lot, in the
first instance. I would think of the
kinds of hypotheticals that I used to pose to students,
and whether those kinds of hypotheticals would elicit
interesting information, at oral argument. So there are many ways in which
my experience as a professor helped me as a
Justice, including, of course, that I thought
about some of the topics that I deal with, especially
some of the constitutional and some of the
administrative law topics. But I think you're right,
to focus on the SG position. I was only in that job
for about 15 months, but it's almost
the closest thing to being a Supreme Court justice
than a Supreme Court Justice. I mean, in some ways, it's a
better preparation, I think, than being a Lower-Court Judge,
because what the Solicitor General does is,
basically, think about the Supreme
Court all day long. The Solicitor General
represents the United States, in the Supreme Court, along with
supervising the lawyering that goes on in all the
Appellate Courts. But it specifically
represents the United States in the Supreme Court. So, once a month, I would
go to the Supreme Court, and I would argue cases. And the Solicitor
General, herself, usually argues the most
significant case. And then you superintend all
of the brief-writing and all the cases that the United
States participates in-- and that's a lot of cases. The United States participates
in-- either as a party or as an amicus-- a
friend of the court-- participates in about
70% of the cases that the Supreme Court hears. So you're constantly thinking
about the Court and the Court's docket, about how to
persuade the Court, about how to argue before the Court,
about how the Court's procedures work, about what the
Justices are thinking about. One way you could say it is,
the Solicitor General's job is to try to figure out how
to convince nine Supreme Court Justices. And the thing
that's changed, now, is that I only
have to figure out how to convince eight
Supreme Court justices. [LAUGHTER] But by doing the
Solicitor General's job, I really got a kind of crash
course in the Supreme Court and how it operates
and what the justices were thinking about things. DEAN MINOW: Also a
role, even in the cases that are not yet set
for argument, right? Deciding whether or not to
weigh in on applications? JUSTICE KAGAN: Sure. That the Solicitor
General decides which cases to
take to the Court. There are lots of cases that
the United States may lose, that we don't petition the Court
to take all of those cases. So the solicitor general tries
to figure out-- and, often, looking at it from the
Court's perspective. Is this the kind of case that
the Court is going to take? Does this fit the
Court's criteria for what cases ought
to go up there? Or are they just going
to laugh at us, when we ask them to take this case? So trying to figure out-- from
the perspective of the Court, as well as from the perspective
of the United States government-- what
cases to take up there. DEAN MINOW: So just two
more questions about this. One is, as the Chief Legal
Officer for the United States, you had to deal with
the different agencies. And they didn't always agree. So what's the role of this
kind of a legal actor, looking across
different agencies? JUSTICE KAGAN: Yeah. It's one of the most fun parts
of being the Solicitor General, is that the Solicitor
General, often, is in a position where different
agencies-- or different parts of agencies-- are pressing
different positions, pressing different arguments. And you have to figure out
the position that the United States is going to take and
the arguments that the United States is going to make. And so, often, you
call these meetings. And there are just
a slew of people, in a room, all pushing
their preferred position. I'm looking straight at Charles
Fried, who was the Solicitor General extraordinaire and
knows what I'm talking about. And you would get all
these people in a room, and they would all be
pushing their positions. And you would have to decide. Now, it's interesting that
first-- you'll appreciate this, I think, Dean Minow-- because
part of a Dean's job is, you have eighty, or ninety,
or ahundred-- whatever it is-- faculty members-- DEAN MINOW: A hundred ten. JUSTICE KAGAN: Yeah. A hundred ten. And they're all pushing
different things. And to try to sort of negotiate
and arrive at consensus, and arrive at a position
that everybody can live with. And at first, in the
Solicitor General's office, I started by thinking
of that model. I started by thinking
of bridging differences and arriving at
consensus positions. And then I realized
that they actually did not expect me to do that. They just expected me to decide. [DRY LAUGH FROM DEAN MINOW] And I thought, what a change--
and what a refreshing change, really. [LAUGHTER] It's, like-- all
these people-- I mean, if we reached
consensus, that was good. I mean, nothing
wrong with consensus. But if we didn't,
everybody thought, Okay, that's-- that's, uh-- DEAN MINOW: That's it. JUSTICE KAGAN: That's
the ball game, too. That's all fair. That's her job. She gets to decide these things. And as long as everybody
felt listened to, I felt as though--
you know, sometimes, I could not do the kind
of bridge-building and consensus-building thing,
but, instead, actually say, you know, I've looked
at you, and you've presented me with six
different positions. And, you know, I think
position four is the right one. The end. DEAN MINOW: Did you
ever-- you did, sometimes, need to go to the
White House, though. It wasn't just always your call. JUSTICE KAGAN: Uh, you
know, very, very rarely. Yeah. I mean, almost never. And I think that
that's consistent with other Solicitors General,
in other administrations-- is that, you know,
every once in awhile, you'll hear what the
White House would like. But the Solicitor General's
job is a very autonomous one, that there is a view, I think,
in most administrations-- certainly there
was in this one-- that it was to be independent,
in the vast, vast majority of cases and situations. And it was your call to make. And, indeed, there's
even a little bit of independence
from the Attorney General, your direct
supervisor, where it would be very rare
for the Attorney General to get involved in a
decision that, sort of, fell within the ambit of the
Solicitor General's office. So I don't want to say never did
I hear what either of those two individuals would have wanted. But I think, as in
most administrations-- DEAN MINOW: Very rarely. JUSTICE KAGAN: --truly rarely. DEAN MINOW: So the last
question on this series is, compare Solicitor
General role with being on the Court, 10th Justice
versus 9th justice. You've indicated one way
in which it's different-- how many people you
have to persuade. JUSTICE KAGAN: By the
way, the Court, I think, does not view the
Solicitor General-- DEAN MINOW: [LAUGH] JUSTICE KAGAN: --as
the 10th justice. [LAUGHTER] I think the court views the
solicitor general as important, and one hopes that the Court
respects the solicitor general and respects the solicitor
general's office. But this "10th-justice" phrase,
which is a pretty old phrase, I think the court is, like, no. [LAUGHTER] There are nine of us. That's a good, odd number. That's fine. [LAUGHTER] DEAN MINOW: So,
asking questions, versus answering them. Better, worse, harder? JUSTICE KAGAN: Oh, asking
them is so much easier. [LAUGHTER] I mean, that's what
I try to think about, actually-- what I
try to remind myself of-- is that answering
them is hard. And when you stand
up at that podium, it's a really tough thing to
do, because we don't give you much time to collect
your thoughts and to express yourself
in all the ways that you practiced in
front of the mirror. Maybe you stand
up at the podium, and you get a sentence out--
two sentences, if you're lucky. And then the questions
start, and they don't stop, usually--
not always, but usually-- until you sit down,
half an hour later. And you're just bombarded. And in order to be-- this
isn't true of all courts. It's not true of all
Appellate Courts. But, you know, it is true,
there are nine people. We only have an hour-- half
an hour, with each attorney, usually, sometimes
even shorter-- twenty minutes with
one, ten minutes with another, that
sort of thing. And we all have a
lot of questions. And we bombard them. We batter them. And sometimes, we don't
even-- sometimes we talk a lot, to each
other, and the poor person standing at the podium
is really, just, sort of a way to communicate
with your colleagues. We're not really, actually, all
that interested, sometimes-- [LAUGHTER] --in what you have to say. We're a little bit more
interested in talking with each other. And there are reasons for that. I think there are good
reasons for that, sometimes. But it's really
hard to be up there and to face this
sort of onslaught. So I try to remember
that and try, you know, to at least be polite. DEAN MINOW: I think
yours has been described as a "hot bench." It's a very animated
group of justices who ask a lot of questions. JUSTICE KAGAN: And people say--
I think this is, probably, right-- that everybody,
recently, who has retired from the Court has been
replaced by somebody who asks more questions. And I think that
that's probably true. I know it's true, in my case--
that Justice Stevens used to ask great, great questions,
always questions that went to the real
heart of things. But he was very,
very economical. And I'm afraid to
say that I'm not quite as economical as that. And I think that
that's been true of a lot of the-- I
think, Justice Sotomayor, and the Chief Justice,
and Justice Alito-- all the recent
appointees-- probably ask more questions than the
people that they replaced. So at this point, we're a little
bit tripping over each other. DEAN MINOW: And the fact
that you're from New York has nothing to do that. Each of-- JUSTICE KAGAN: Four of
us are from New York. So, you know, who
knows whether-- DEAN MINOW: [LAUGH] JUSTICE KAGAN: But some of the
non-New Yorkers do pretty well. Yeah. [LAUGHTER] DEAN MINOW: Now, you
mentioned that, sometimes-- JUSTICE KAGAN: That's
part of the reason we love Justice Thomas. You know, we do. We love Justice Thomas. [LAUGHTER] DEAN MINOW: 'Cause
he's not from New York. JUSTICE KAGAN: No, he's
not, like-- you know, if it were nine justices
asking questions. I think Justice Thomas
thinks we're all ridiculous. It's, like-- [LAUGHTER] --would you let the person talk? You know? And he has a point. So it's, like-- DEAN MINOW: You know,
not long ago, we were so honored by
Justice Thomas coming to spend time here on campus. And, you know, I
asked a question. I didn't say, "Why don't you
ask questions at oral argument." I, instead, said, "What do
you think about the fact that your colleagues
ask a lot of questions, at oral argument?" That was pretty good, right? [LAUGHTER] And he said, well, I really
don't have to ask any, because I just wait. They're all goning to be asked. JUSTICE KAGAN: Yeah. [LAUGHTER] Yeah. Yeah. He's a fantastic man. And really, I think, he
kind of thinks, sometimes-- and I think he, sometimes,
has a point-- that it's, like, really, enough already. DEAN MINOW: Let
them do their thing. JUSTICE KAGAN: Yeah. DEAN MINOW: You
mentioned that, often, you and your fellow
justices are actually talking with each other. But it's an odd art
form, because it's in the form of a question. You're not actually
turning to each other and having the conversation. JUSTICE KAGAN: Yeah, sometimes. I mean, sometimes,
I'll ask a question, and then I'll
realize that really didn't seem like a question. It really seemed
like a statement. And I kind of want to say, just
put a question mark on that. You know? DEAN MINOW: Right. Right. JUSTICE KAGAN: So sometimes
they're questions, and sometimes they're,
sort of, statements with a question mark at the end. I think that the reason is that
we talk to each other, first, at argument. You know, we don't get
together and talk about a case before argument. Argument is the first
time that, as a group, we're talking about a case. I mean, maybe there's
some individual chitchat between one justice and
another, before argument. But not as a group, certainly. And then, when we go into
conference, a couple of days after argument, we
go around the table, and people-- each one, by
seniority-- talks and then says how he or she
is inclined to vote. So I'm the ninth person. So if you think about
it, from my perspective, I don't really get a chance
to say anything at conference, until everybody has
already indicated an intention about how
they're going to vote. So to the extent
that I have something that I think is a slightly
different take on a case, or something that I want
my colleagues to hear, before they say how
they're going to vote, argument is the time
for me to do that. And I think we're
all aware of that, that argument is a time
when one can put ideas into your colleagues' heads. And especially if
they're ideas that aren't like straight
out of the briefs, that are a different, new
way of looking at things, a way that might not have
occurred to your colleagues. Or if you think you have a
different sort of critique of an argument that seems to
be gaining sway at arguments is the time to do all of that,
to put the ideas out there, to put the criticisms out
there, so that people hear them before they go back
to their chambers. And they mull things over
for a couple of days, and then they come
into conference. DEAN MINOW: How do you
prepare for argument? JUSTICE KAGAN: Well, I read
the briefs really carefully. I mean, people sometimes say,
how much does argument matter? And the argument
itself sometimes matters but matters
less than the briefs. I mean, if you're going to rank
order which is more important, by far, the briefs
are more important. So I spend a lot of
time with the briefs. I read the briefs. The parties' and,
frequently, the amicus briefs-- not all of them,
necessarily, in every case. But I look at which parties
are filing amicus briefs. I look at which lawyers
are writing those briefs. I ask my clerks to-- DEAN MINOW: Summarize? JUSTICE KAGAN: They have
to read all the briefs, and they tell me which ones I
should pay close attention to. So I spend a lot of
time with the briefs. And then I talk
to all my clerks. I have one clerk
write a bench memo, and that bench memo
is just supposed to be a kind of--
my take on the case. If I were a judge, this is the
way I would think about it. And then-- DEAN MINOW: You
have four clerks. JUSTICE KAGAN: I
have four clerks. But I-- one person does
that, for every case. And that provides a
kind of launching pad for a conversation
to take place. But I talk not only to the
clerk who wrote the memo, but to all of them. And one of the
things I tell them, at the beginning of the
year-- and, sometimes, I remind them of this in
the middle of the year-- it's more helpful
to me, actually, if they disagree
with each other. So I don't really want
manufactured disagreements, but I certainly don't want
them to suppress disagreement. Because part of the way
I think through problems is to talk through problems,
and to listen to other people give me their views, and
to think about, like, what sounds better to me? And so we have a conversation,
and in an easy case, that conversation can
take twenty minutes, and in a hard case, it can
take an hour and a half, or even longer. And then I'll go into argument. And one of the
things that we do, when we talk about the cases,
is we'll all talk together about what kinds of questions it
would be useful for me to ask. So I think about that, as well. And then I go into argument. And then, when I
come out of argument, sometime in the next two days--
between the time of argument and the time of conference--
I'll meet with my clerks again, and we'll sort of talk about
whether anything new came out-- either any new arguments
that the lawyers made or anything new that we learned
about how my colleagues were inclined to deal with the case. And we talk about whether
anything's changed. And then I'll make up my mind. DEAN MINOW: So you have
some special functions as the Junior Justice. What are those functions? JUSTICE KAGAN: Ah, yeah,
they're very difficult tasks. They're very serious tasks. When we go into the room, the
conference room-- great room, actually-- it makes
you feel very judgely, I mean, being in
this room, you know? We go in without anybody. It's just the nine of us, there. We don't bring in
any of our clerks. There's none of the court
staff that comes into the room. We actually don't bring
in laptops or iPads-- DEAN MINOW: Really? JUSTICE KAGAN: --or
anything like that. So it's sort of just like-- DEAN MINOW: You let
go of your phone? That's amazing! JUSTICE KAGAN:
Yeah, there you are. It's just, like, us
and our notebooks. But sometimes, people
will forget things, or they'll need things. Like, I forgot my cup of coffee,
or I forgot my eyeglasses, or I failed to bring
the crucial file. And so they'll get on the
phone with their chambers, and somebody will come. And then there's,
like, a double door. It's like not enough
that you have one door. And they'll knock
on the outer door. And then I have to hop up
and open the inner door. DEAN MINOW: (AMUSED)
That's your job. [LAUGHTER] JUSTICE KAGAN: And truly--
truly, if I don't do it, nobody will. [LAUGHTER] If I don't do it, like,
they'll all just stare at me. [LAUGHTER] Elena, that was a
knock on the door. You know? [LAUGHTER] So I open up the outer door,
and I get somebody's eyeglasses or somebody's-- whatever. That's one part of my job. The second part of my job is I
take notes on everything that we do, and I actually convey
what we do to the people who have to know about
it-- primarily to the clerk's office-- to the-- DEAN MINOW: Your disposition. JUSTICE KAGAN: Yeah. So we denied this case. We GVRed that case. We held this case. We-- DEAN MINOW: "GVR" means--? JUSTICE KAGAN: Grant,
Vacate, and Remit. DEAN MINOW: Thank you. JUSTICE KAGAN: We granted
this case, that sort of thing. So I convey our actions. DEAN MINOW: But
sometimes, you're getting up to answer the
door, and you're taking notes. JUSTICE KAGAN: Yeah. It's hard to do
both at one time. It's like walking and chewing
gum, or something like that. [LAUGHTER] DEAN MINOW: Now,
at some point, you told me that you were,
also-- because of your role as Junior Justice--
put on the cafeteria. JUSTICE KAGAN: Oh, yes. That's my third job. DEAN MINOW: Oh, yeah. JUSTICE KAGAN: Yes. Yes. It's like a humbling
experience, I think. It's like-- DEAN MINOW: You're being hazed. JUSTICE KAGAN: Exactly. Right. It's like, what's the
worst committee to be on? The cafeteria committee. But you know. When I was Dean-- I,
you know, I, kind of-- DEAN MINOW:
Cafeterias are great! JUSTICE KAGAN: --created
that cafeteria. DEAN MINOW: You sure did! It's really great. Soft-serve ice
cream, you like it? JUSTICE KAGAN: [LAUGH] [LAUGHTER] Anyway, I hope it's good. There's a fantastic guy
in the building called the Counselor to
the Chief Justice. And he came to see me, my
last day as Solicitor General, on the day before
my confirmation. And he said, I just
want to prepare you for all these things
that are going to happen. And we should talk
about your investiture, and we should talk
about this and that. And then one of
the things he said was, "And you'll be on
the cafeteria committee." And I said, you know,
"I do cafeterias." DEAN MINOW: [LAUGH] JUSTICE KAGAN: But I
actually don't do very much, on the cafeteria committee. DEAN MINOW: You are the
youngest of the justices. JUSTICE KAGAN:
Justice Breyer was on-- he was the Junior Justice
for, like, thirteen years on the cafeteria committee,
because there was just no movement, in the Court. Right? So thirteen years later, he
was still opening the door. [LAUGHTER] [LAUGH] DEAN MINOW: You are the
youngest of the justices. But when you're in the
room with your clerks, you're the oldest in the room. So you're kind of
between-- I don't know. What's that like, to
cross over the age groups? JUSTICE KAGAN: Yes. I lack peers. Is that what you're
going to say? [LAUGHTER] No, there are a few of us. There are a few of
us who, you know, are sort of the same age range. But I don't know. I love having clerks. And I love talking
to young people, as part of-- I guess I loved
that, when I was here-- DEAN MINOW: And teaching. JUSTICE KAGAN: --as a
professor-- is teaching. And you know, in some
ways, it keeps you young, to talk to young
people all the time. But then, it's sort
of nice feeling like you're the-- you know,
I'm coming up on 55, right? So this is not-- DEAN MINOW: You're a baby. JUSTICE KAGAN: This is
not young, by any means. But when I get together
with my colleagues, I feel kind of young, you know? [LAUGHTER] So that's good, you know? DEAN MINOW: When I
was last at the Court, I was talking to one of
the guards, who said, we can always tell when Justice
Kagan is coming down the hall. I said, how can you tell? He said, she walks fast. [LAUGHTER] JUSTICE KAGAN: That's
because I'm a New Yorker. [LAUGHTER] DEAN MINOW: So I'm
sure many people here are curious about
your relationship with your colleagues. It's much discussed. Are there friendships? How can you be friends with
people with whom you disagree? You have majority opinions
with sharp dissents. So do you spend time together? How do you relate to each other,
outside of the judging work? How do you deal with the fact
that you do disagree and then need to see each
other the next day? JUSTICE KAGAN: You know,
Justice Scalia said to me-- and I've heard him
repeat the line, on a few other
occasions-- once, he said, to me, if you
take any of this personally-- if you take the
disagreement personally-- you're in the wrong
line of business. And I think that's right. And I think, you
know, he and others are a great role model in that. I mean, we do
disagree, and we are going to disagree-- and
about important things, and about matters
that we care about. But I think you
just can't let it affect your personal
relationships. And you have to go in knowing. And I believe this, with
every fiber of my being, that people are all
operating in good faith and trying to do the
right thing and taking their jobs extremely seriously. And sometimes, you're going
to reach different outcomes-- and, again, different
outcomes on things people care passionately about. But those are the
issues, and the issues are different from the people. And I think it's an
incredible group of people-- smart, engaged,
interesting, personable; really decent people. And I enjoy being with them. And I enjoy-- you
know, honestly, sometimes the folks
who I disagree with are, really, among my favorites
to just to spend time with. DEAN MINOW: Speaking
of which, are you going hunting, again,
with Justice Scalia? JUSTICE KAGAN: I am. [LAUGHTER] So Justice Scalia
and I are going down to Mississippi, this December. And we're going to hunt ducks. DEAN MINOW: Ducks! [LAUGHTER] JUSTICE KAGAN: Yeah. DEAN MINOW: Have you
done ducks, before? JUSTICE KAGAN: I've
not done ducks, before. Yeah. Justice Scalia and
I, usually, do-- we shoot birds--
quail and pheasant. And then, once-- I think
you asked me about this-- DEAN MINOW: I did
ask you about this. JUSTICE KAGAN: Once we
went out to Wyoming, to shoot deer and antelope. And you sort of looked at
me and said, you shot Bambi? Or something like that. [LAUGHTER] And the answer was, I did. [LAUGHTER] But we're going
down to shoot ducks. And the genesis of this was--
you know, I told this story. I've told this story
about 1,000 times. But-- DEAN MINOW: Tell 'em. It's a good story. JUSTICE KAGAN: The
genesis of this was, I was asked just a ton of
questions in the confirmation process-- by Democrats
and Republicans, alike-- about my
views on gun rights-- Second Amendment issues. And people can't ask
you, like, how are you going to decide this
case, or how are you going to decide that case? So they have to find
proxies-- ways of sort of trying to scope out
what your views are. And the natural proxies
that people used-- you know, they just asked me
a lot of questions. There were so many interviews
of these courtesy visits, that you do with-- I
did them with, like, eighty-two Senators. And so many of them,
people would say, have you ever hunted, and
have you ever owned a gun? And do you know people who hunt? Do you know people who own guns? And you know, I grew
up in New York City. We didn't go
hunting on weekends. [LIGHT LAUGHTER] And I failed these
questions, miserably. And, you know, failed them,
from their point of view, because I had really
nothing to offer. And I was talking to one
of the Senators from Idaho. And he was telling me that
he did a lot of hunting, and that this was very important
to a lot of his constituents, and to understand the
culture was something that he was worried
that I just didn't get. And I said to him, I said,
you know, Senator, I said, I gotta tell you,
this is not something that I've ever encountered the
opportunity to do in my life. But if you invite me
out to your ranch, I would love to go
hunting with you. And he looked at me with
just this total horror. You know? [LAUGHTER] Like, did this person just
invite herself to my ranch to go--? [LAUGHTER] And when you thought
about it that way, it was a little bit
beyond the bounds, right? So I said, well,
Senator, I don't really mean that you have to
invite me to your ranch. But, I said, you know, I'll
make this promise to you-- that, if I'm lucky
enough to be confirmed, I'll ask Justice
Scalia-- who I know to be an avid hunter--
to take me hunting. And, when I got to the Court,
I went to Justice Scalia, and I told him this story. And I said, this is
the single promise that I made, in 82
courtesy visits. And he thought it was hilarious. [LIGHT LAUGHTER] He thought it was so funny. And he's you know, fantastic,
because he has these hunting groups and these
hunting buddies. But he's like always, do
you want to go Saturday? Do you want to go Monday? Do you want to go Thursday? [LAUGHTER] I can go hunting with Justice
Scalia, like, every day. [LAUGH] [LAUGHTER] And you know, he loves it. And it's fun. And it's, actually,
a lot of fun. I found it to be a lot of fun. So I really enjoy
being with him. I really enjoy doing this--
not as often as he does. But yes, we go hunting together. And he tells me
ducks are really fun. [LIGHT LAUGHTER] So-- so ducks it will be. DEAN MINOW: Who's
the funniest Justice? JUSTICE KAGAN: Well,
Justice Scalia is, I think. Yeah. I mean-- do you
know that there's something that keeps
track of the laugh lines? DEAN MINOW: [LAUGH] JUSTICE KAGAN: There's
somebody out there-- DEAN MINOW: Counting? JUSTICE KAGAN: --who just
counts all the laugh lines-- DEAN MINOW: In your transcripts? JUSTICE KAGAN: --in the
Supreme Court transcripts. DEAN MINOW: Wow. JUSTICE KAGAN: And turns out
that Justice Scalia and Justice Breyer, I mean, are-- like,
lap the field, 10 times. [LAUGHTER] I don't do very well. Somebody-- DEAN MINOW: Really? JUSTICE KAGAN: One of the
people who does this counting-- DEAN MINOW: I'm surprised. JUSTICE KAGAN: --once wrote, on
one of his blogs, or something, that I was underperforming-- [LAUGHTER] --what they knew to be my
true potential, you know? But there you go. DEAN MINOW: Are these just how
many times somebody laughed, or is it how long the laugh
is? 'Cause maybe your laughs are longer. JUSTICE KAGAN:
That's the problem. That's the problem. Yeah. No, I don't know. You know, I sort of feel like
we so-- there's so little time to ask questions, as it is,
that the idea of cracking jokes up there seems-- for
a Junior Justice-- to be a little bit much. But you know, Justice
Scalia is incredibly funny. Justice Breyer is
incredibly funny. The Chief Justice is very,
very witty and very, very fast. DEAN MINOW: Hmm. JUSTICE KAGAN: So
he's, really-- yeah. And you know what? DEAN MINOW: You
enjoy each other. JUSTICE KAGAN: And other people,
occasionally, surprise you, you know? [BEMUSED LAUGHS FROM AUDIENCE] Justice Ginsburg loves it,
when she makes people laugh. [LAUGHTER] 'Cause people don't
really expect it, and then, it's like-- ha! Now you know I'm funny! [LAUGH] [LAUGHTER] Which she is. DEAN MINOW: Let's
talk a little bit about writing and your opinions. Your opinions are already
gaining a reputation for being
distinctively readable. So I'd be interested
to hear who you think are the audiences
for your opinions. What do you do--
if you do something conscious-- to
make them readable? What is your goal, and
how do you write them? JUSTICE KAGAN: Well, I do
want them to be readable. I mean, sometimes
I ask myself why? Because in some of my
opinions, you know, probably only experts are
going to be reading them. It's not like every
person on the street is going to pick up
some of my opinions on abstruse and arcane subjects. But still, I actually
try to make them so that, if there was a person who did
that, that the person would be able to understand
what I'm talking about and both the outcome and
the reasons for the outcome. And I think, in some sense,
we owe that to all the people who deal with our work--
obviously to Lower Court Judges and to litigants
and their lawyers. But, you know, but also
to the ordinary people who are interested in what
we do-- to the extent that there are
people-- and there will be more in some cases than
in others, but that's Okay. And what do I do, to try
to make them readable? I mean, mostly, I
spend a ton of time, because I think good writing
just takes a long time. And especially, I think,
good legal writing takes-- I mean, it
takes real work, because some of these subjects
are really complicated, and they're foreign
to people, and they can sound really arcane. And to try to explain
what's at issue and why it matters, in a way
that people can understand, it takes more than one draft. And so, mostly, I just work at
it and work at it some more. DEAN MINOW: The
Journal's Lincoln Caplan calls you "the master
of the topic sentence." [KAGAN LAUGHS LOUDLY] JUSTICE KAGAN: "The master
of the topic sentence!" DEAN MINOW: And he
quotes several of them. JUSTICE KAGAN: Wow! DEAN MINOW: "A trip back
in time begins to show why" was an example. And another-- he also says you-- JUSTICE KAGAN: I'm sure we
can do better than that. [LAUGHTER] DEAN MINOW: He also
says you're the master of "the stylish dig." In his example, here-- JUSTICE KAGAN: Well,
that's a good thing to be. Okay. I like that one
better than the-- DEAN MINOW: You
like that better? JUSTICE KAGAN: --"master
of the topic sentence." DEAN MINOW: Okay. JUSTICE KAGAN: Although-- [LAUGHTER] I do-- you know,
I tell my clerks, topic sentences are
really important. DEAN MINOW: It,
clearly, comes through. So stylish dig, this
was his example. "Wrong, wrong, and wrong again." JUSTICE KAGAN: Right. I think we can-- we can
do better than that, too. [LAUGHTER] DEAN MINOW: But he says-- and
others have said so, too-- that you're in a class by
yourself in the down-to-earth writing and the ingredients that
make an influential opinion, including insight,
clarity, and verve. JUSTICE KAGAN: Well, I
think there are, actually, a lot of excellent
writers, on the Court. I think it's one of the things
that this Court is notable for-- is that there are, really,
some truly excellent writers. And I learn from some
of my colleagues. Sometimes, one of the
ways to be a good writer is to read good writing. And sometimes you
read briefs, and you think, every moment I
spend with this brief, I'm becoming a worse writer. [LAUGHTER] But I often feel the opposite,
with some of my colleagues' writing-- is that, every moment
I spend with somebody else's opinion, I become
a better writer, and I see new and
better things to do. DEAN MINOW: The attention
to the United States Supreme Court-- and, indeed,
many High Courts-- is, usually, given publicly
to the most controversial decisions-- the ones
that divide the Court; the ones where there are
sharp, 5-4 decisions. And I wonder whether
there are other cases that aren't so divisive-- that aren't
so high-profile-- that you wish got more public attention? JUSTICE KAGAN: Well, I
guess, the first thing to say about that is what
doesn't get public attention is how often we agree. Because, you know,
for the most part, people do focus on these cases
about the hot-button issues, in which, frequently,
we are divided, and sometimes we are divided
along fairly predictable lines. But there's this whole
world of our docket, out there, where we actually
achieve remarkable unanimity. So I think over the past several
years, it's been at least 50% of our cases-- I think
it's been 50% is, sort of, the norm-- of
unanimous decisions. And then, this year,
we were way over 60%. DEAN MINOW: Way higher. JUSTICE KAGAN: You
know, it was like 65%, or something like that. And these are hard cases. There's nothing easy about
most of the cases that we take. Mostly, we take cases
because the issues that they present have
divided the lower courts. So these are cases that,
almost by definition, have divided other judges. And yet they come to us. And, very frequently, all
nine of us agree on the right answer to it, and
often agree, as well, on the reasoning behind it. So I think-- you know, this
year, it got some attention, because we were so high on
this measure of unanimity. And then some people argued,
was it faux unanimity? Because, sometimes, we
agreed on the result, but we disagreed
on the reasoning. And that was true,
in certain cases-- in certain important
cases, this year. But it is, sort of, striking, I
think, that on a lot of cases, people with, you know,
different judicial philosophies, different-- you know,
actually see it the same way. And so that suggests
that we're closer than people think we are. So I guess that's one thing. DEAN MINOW: Last term,
you wrote opinions dealing with visa eligibility
dates for children, religious prayer
in town meetings, use of a gun in
drug-trafficking cases, sovereign immunity
for Indian tribes, taxpayer relationships
with IRS agents, government employee union
fees and free speech, federal bank fraud, who
is a purchaser of a gun. How do you handle
such a wide range of topics, and coming up
to an issue you've never thought about before,
in a field of law you've never seen before? How do you do that? JUSTICE KAGAN:
Well, first, I think that's one of the great
things about the job. Because, you know, I'm
essentially a dilettante. You know? Which is to say, I've had--
actually, in a lot of jobs that I've had-- a
pretty wide breadth. And you know, I
don't know as much as the world's expert
in any particular area. But what matters, to
the job, is the ability to just cut across a very,
very broad swath of issues, and to know enough, and
to do a good job at that. And, you know, some
people are kind of people who want
to plumb the depths. And some people are
people who in their jobs would actually rather do
something new, every day. And I think I've been more
comfortable with the latter. I love the fact that
every day presents a new issue, and a new
case, and something I haven't thought about before,
and something I need to learn. Some lawyers-- and I think this
is almost temperamental, right? Some lawyers create
careers in which they just go deeper, and deeper,
and deeper into one thing, and some lawyers
create careers in which they do a whole world of things. And you have to kind of know
what kind of person you are. And I'm the second
kind of person. And for me, that
feature of the job is one of the really
great things about it. DEAN MINOW: You get to learn
new things, all the time. JUSTICE KAGAN: Yeah. DEAN MINOW: Talk
about dissenting. Do you like to dissent? How do you decide to dissent? When is it important to write
a dissent yourself, even if there's another
justice who's dissenting? JUSTICE KAGAN: Well,
different dissents serve different functions. I mean, dissents, on
our Court, usually, are assigned in a similar
way to majority opinions, that the most senior
justice in the majority will assign the
majority opinion. So that's the Chief Justice,
if he's in the majority. If not, maybe it will
be Justice Scalia, or maybe it will
be Justice Kennedy. And then, usually,
the most senior person on the dissenting side
will assign the dissent. So I think I wrote only
two dissents, last year, and they were both assigned
to me by Justice Ginsburg. But I've had dissents
which have been assigned to me, for example,
by Justice Scalia. I've not done one where I
just say-- I've not actually ever dissented alone,
when it-- you know, eight-one, and I'm the one. Nor have I done
one where I said, somebody else was
assigned to dissent, but I just feel a need to write,
myself-- which you can do. DEAN MINOW: And many
of your colleagues do. JUSTICE KAGAN: Yeah. But for me, I usually vote, and
I usually accept assignments. And I'm both on the majority
and the dissent side. I'm pretty thrilled with the
assignments that I've gotten. And then different dissents
serve different purposes. You know, sometimes,
you're just kind of registering
your disagreement, and it's on an issue
that's not the world's most earth-shattering issue. And it's more important
that the issue be decided than it necessarily
be decided one way. But still, you think
the Court got it wrong, and maybe you think it's
important to register that. It's important that
the parties know that this was a pretty
close case-- that there was an opposite point of view
that was taken very seriously and, in fact, was agreed to
by some number of justices. But, you know, you don't-- you
know that you're going to write this dissent. And then that will be
that, and you'll never think about the issue again. And the Court and
you will go on as though the dissent
hadn't been written. DEAN MINOW: But it's the
essence of our teaching. We use them all the time, right? JUSTICE KAGAN: Yeah. But then, some
dissents are-- you know, you're trying--
I mean, some dissents, you're very aware
that this is one where, you hope, ten or
twenty years down the road, the Court will see the
matter differently. And writing that
kind of a dissent is a very different
enterprise, because you're sort of writing for
some future Court-- for some future
justices-- who you hope will look at the same
issue-- or a similar issue-- and really think that the
majority got it wrong, and you got it right. And those dissents
are going to read very differently, because
they serve different purposes, and they're designed
to do different things. DEAN MINOW: You dissented in
the case of the Town of Greece that dealt with a
practice of having prayer before a town meeting. And Sandy Levinson, professor
at the University of Texas Law School, says it is a
dissent worthy of the canon and "wonderfully
accessible prose that should be read
by newspaper editorial writers," ordinary readers. And you said, in that dissent,
you begin, "For centuries, now, people have come
to this country, from every corner of
the world, to share in the blessing of
religious freedom. Our Constitution
promises that they may worship in their own
way, without fear of penalty or danger, and that, in itself,
is a momentous offering. Yet our Constitution makes
a commitment still more remarkable-- that, however
those individuals worship, they will count as full and
equal American citizens. A Christian, a Jew, a
Muslim-- and so forth-- each stands in the same
relationship with her country, with her state and
local communities, and with every level
and body of government." JUSTICE KAGAN: OK. Enough. DEAN MINOW: OK. It's powerful. It's powerful. Any comments? JUSTICE KAGAN: [LAUGH] [LAUGHTER] I believe that. DEAN MINOW: [LAUGH] [LAUGHTER] OK! JUSTICE KAGAN: [LAUGH] [LAUGHTER] DEAN MINOW: What would you-- JUSTICE KAGAN: You know what? For the most part, I do
think that our opinions speak best for themselves. And I feel that,
about that opinion. I mean, it's, like,
that opinion said all I have to say
about the subject. And if I tried to
talk about it, it would not be as good
as that opinion. [LAUGHTER] DEAN MINOW: Well, that's a
lot of what novelists say, too, right? You know, read the book, right? [BOTH LAUGH] In a minute, I'm going to
open this up for questions. And there's some mics, here. And so be thinking
about your question. But I do have one or two
more that I want to ask. You've been on the Court,
now, several years. What do you wish you had-- JUSTICE KAGAN: Five. This is my fifth. DEAN MINOW: Wow. JUSTICE KAGAN: I
mean, so, four-- DEAN MINOW: Four, already,
and it's already your fifth. What you wish you
had known, before? JUSTICE KAGAN: Like, the-- like,
the single piece of wisdom--? DEAN MINOW: Yeah, you know. JUSTICE KAGAN: You know what? Honestly, maybe I'll
go home, and I'll think what the answer
to that question was. But right now-- DEAN MINOW: But I stumped her! Look at that! JUSTICE KAGAN: --it's
not occurring to me. But I would say this. I guess, because, you know,
I learn something every day. And some of it might be
about some area of law than I knew nothing about. Some of it might be about ways
of dealing in an institution that, still, there's
lots to learn about. And I sit in Justice
Stevens's chair. Justice Stevens was my
predecessor, and when he resigned-- and
he was 90 years old, and he had been a
justice for 35 years. And he gave a
number of interviews when he stepped down. And in one of them,
he basically said, the amazing thing about this job
is I learn something every day. And I read that, and I thought,
what an incredible thing. The man's 90 years old. The man has served in the
same job for 35 years. The ability to say that, to
sort of approach every day as though there's
something to learn here that I didn't know
before, is a gift. And I don't think I
have that temperament to the extent that he
did, but I wish I did. You know, I've only been
there for four years, but I feel as though
every year I look back, and I try to figure out, like,
what have I learned, this year? And there is a whole
host of things. And I hope that that
continues on into the future. DEAN MINOW: Great. What piece of advice
would you give to people who are starting
their study of law, right now? JUSTICE KAGAN: You know,
be open to new things-- to new possibilities. People come in, and
some people already know what they're interested
in, and that's great. But even for those people, to
be open to new things, because, like, law school
can surprise you. All of a sudden you'll
be in some class that you never
thought you'd like and you took only for
some screwy reason, like it was at the right
time, or something. And it's like the best
thing you ever did. And so to try new things,
and to be open to the fact that some of them may have
really unexpected effects, on you. And so to do that,
to take more risks than you think you should. Law students are too
risk-averse, generally. You're here at
Harvard Law School. That's a really
great place to be. It gives you a platform
to be able to take risks. You should take
advantage of that. And to be aware that you
learn as much from your peers as from your professors. Not that there's anything
wrong with your professors. But also, one of
the great things about being in
this institution is that you're here with a whole
ton of really incredibly interesting and smart
and nice people. And to take advantage of that. So I guess those are my
three pieces of advice. DEAN MINOW: Those
are really good. We have students here in
both the JD and LLM program from 74 countries this year. JUSTICE KAGAN: Wow! DEAN MINOW: Yeah. Pretty good. Who's going to ask a-- JUSTICE KAGAN: I have a couple,
in this class I'm teaching. DEAN MINOW: All right! JUSTICE KAGAN: Yeah,
they're very good. Yeah. DEAN MINOW: All right. And you're going to come back
and teach next year, right? JUSTICE KAGAN: Of course! DEAN MINOW: All right. [LAUGHTER] Who's going to ask a question? Come up to a mic. Come up to a mic. Walk on over. And when you are there, please
identify yourself by your name and where you are
in your education. Let's start right here. AUDIENCE: Hi. I'm Robin Ladd. I'm a 1L, section six. Woo-hoo! DEAN MINOW: Maybe talk a
little louder into your mic. Is it-- is it on? AUDIENCE: I'm Robin Ladd. I'm from Section 6. DEAN MINOW: Great. AUDIENCE: And I'm from Oklahoma. [CHEERS] DEAN MINOW: Whoa! Section 6! AUDIENCE: Yes! Section 6! [LAUGH] Awesome. So my question for
you, Justice Kagan, is, what was the most morally
difficult decision for you to make in a case,
and how did you grapple with the consequences
of that decision? JUSTICE KAGAN: What was
the most difficult decision I had to make, in a case? Well, actually, the case where
I kept on going back and forth, and back and forth. For the most part, I'm not a
Hamlet type, by temperament. You know, I'm a pretty
decisive person. And I don't-- I hope that I
take decision-making incredibly seriously, but I don't have a
lot of back and then forthing and angst, over cases,
for the most part. The case where there were
three different positions that ended up being expressed
in the various opinions, and at one point or
another, I thought I could easily join
any of the three, was actually a First
Amendment case. It was a speech case that
was a long time ago now. But it had to do with violent
video games and kids' access to violent video games. And that was one where I thought
that all the First Amendment doctrine pushed one way
and all of common sense pushed another way. And so that was very
difficult for me. But I ended up going
the way that I thought that the First Amendment
doctrine pushed, and that was to invalidate a
statute that tried to restrict the ability of kids to buy
extremely violent video games. And I actually did have a
lot of angst about that. You know, if I were
a parent, I wouldn't want my kid looking
at those games. And the idea of saying
that a kid without a parent shouldn't be able to
buy some of these games struck me as eminently
sensible, and one of the things, like, something that I
would have voted for, if I were in the California
state legislature. But I thought that I
couldn't figure out a way to square that result
with, essentially, the First Amendment rules
that the court had. So that's the way I went. But I found it a
really hard one. AUDIENCE: Thank you. AUDIENCE: Thank you, very
much, for a fascinating talk. My name is [INAUDIBLE]. I'm from the LLM
program, from Israel. When you were talking about
the audiences of your opinions, you mentioned scholars;
you mentioned the public; you mentioned a lot of people. I notice that you didn't mention
the appellant, the petitioner, the person that his
matter is in stake. And I wonder if
it's because it's hard to see this
person from the bench. Is it because, at
the stage where it gets to the Supreme Court,
it doesn't matter, anymore? JUSTICE KAGAN: Yeah. AUDIENCE: Or-- JUSTICE KAGAN: No, I-- I think,
actually, if I didn't, that was an oversight. DEAN MINOW: No, you did. JUSTICE KAGAN: And, in fact-- DEAN MINOW: You referred to-- JUSTICE KAGAN: --when I
talked about dissents, I specifically said that I want
the litigants to know that they raised good arguments that-- DEAN MINOW: --were heard. JUSTICE KAGAN: --that were
heard and that actually persuaded some
number of justices. But I think you're
exactly right. Now, I think you're right
that, sometimes, it's hard to see those people. Right? Unlike at a Trial Court level,
Appellate Courts-- the issues are abstracted, often. And the people kind of go away. But I think the people,
in all of these cases, deserve to have opinions
that they can read-- and half of them are not
going to agree with them. Half of them are going
to be very disappointed-- but that they can
at least, sort of, look at and understand that
we took their case seriously and that we thought
hard about it, and can understand why
we did what we did. DEAN MINOW: And try to
explain it, in terms that they could understand. JUSTICE KAGAN: Yeah. AUDIENCE: Hi. I'm Miranda Jones. I'm a 1L in Section 7. And thank you, so much, for
speaking with us, today. It's really educational. I was wondering,
what advice could you give those of us who
are interested in pursuing a Supreme Court clerkship? [LAUGHTER] JUSTICE KAGAN: You know,
it's a kind of flukey thing. I would, like, not
set that as the goal. If it happens-- [LAUGHTER] If it happens, that's nice. People say this, to
me, all the time. What did you do
to get-- you know. And it's, like, really? Come on. I mean, it's the--
you know, there are some things that
are sort of stroke of lightning kind of things. But you know, it's a
great job, if it happens. But I would just, like,
enjoy yourself and-- [LAUGHTER] AUDIENCE: All right. [APPLAUSE] Thank you! JUSTICE KAGAN: No,
I mean-- you know, it's good that people-- you
know, take it seriously, and also enjoy yourself,
and take it seriously, and also enjoy yourself. [LAUGHTER] AUDIENCE: Hello. My name is [INAUDIBLE]. I'm in Section 4, and I'm
coming from Eastern Michigan University. First, I just want to speak-- JUSTICE KAGAN: I'm
sorry, you're a--? AUDIENCE: Section 4. JUSTICE KAGAN: Uh-huh. DEAN MINOW: Wow. AUDIENCE: And I want to speak
on behalf of everyone who just finished their first
week of assignments, saying thank you for making
your opinions readable. So I've had this question posed
to me a lot by professors, so I want to pose it to you. Why are justices of the Supreme
Court in any better position to say what the
Constitution means than anyone else in this room? [LAUGHTER] JUSTICE KAGAN: You
know, I'm going to say I know more than most
of the people in this room. [LAUGHTER] [APPLAUSE] At least, I hope I do. [LAUGH] DEAN MINOW: What's the phrase? You're not final because
you're infallible; you're infallible
because you're final? JUSTICE KAGAN: Yeah. Yeah. You know, I don't-- [LAUGHTER] I have to say, I don't
spend a lot of time-- I hope my colleagues
don't, either; I doubt that they
do-- thinking about whether I, rather than other
people, deserve this honor. I mean, it's a
stroke of lightning when it happens to you. It's a lot of chance that
the nine of us are there, rather than nine other people. And all you can do
is to try your best to do the best job you can. And that's all you can do. AUDIENCE: Thank you. DEAN MINOW: Yes. AUDIENCE: Gian Favors. I'm in a 1L, in Section 5. ["WOO-HOO" CHEERS FROM AUDIENCE] [LAUGHTER] JUSTICE KAGAN: I'm glad we have
this section loyalty going here already. Yeah! 'Cause I feel like
we're, like, going to have color war, right now. [LAUGHTER] AUDIENCE: Perhaps
following up a bit, could you, maybe, comment
a bit about the process of being vetted for
the Supreme Court-- JUSTICE KAGAN: It's not fun. AUDIENCE: --what that was like? [LAUGHTER] I wonder, as well, if
you could talk a bit more about conference, and,
I guess, when the doors close to that very
great, judgely room, whether and how often some
of your fellow justices may be swayed by the arguments
or the exchange of discussions that happen, there. JUSTICE KAGAN: You know, I
think more than people think, although not in every case. I mean, sometimes you go around
the room, and everybody votes, and there's no
swaying to be done. I mean, sometimes it's
because, actually, we all agree with each other. So there is some
number of cases. And the Chief always starts. And he always says,
here are the issues, and here's how I would come out. And, on one of these sort
of unanimous-type cases, you'll often hear from the
Chief, and Justice Scalia, and Justice Kennedy. And maybe by the time
they've finished talking, if everybody else just agrees,
everybody will just say, I agree, I agree, I agree. I mean, sometimes,
they can be that fast. Sometimes, there are
cases where we disagree, but there's going
to be-- honestly, everybody knows that
there's not a whole lot of persuading to be done. And I remember my
first conference. We had two cases, in front
of us, and one of those was the kind of
case that was going to get front-page treatment
in the New York Times. It was the kind of case that
everybody was focused on. And the other was this
case-- this totally abstruse, procedural issue. And we did the procedural issue
first, and it took a long time. We were a little bit
fractured at the beginning, and we were really
trying to figure out how to reach consensus on this. And we were really trying to
figure out the right answer, as well as to
persuade each other. It was a fantastic discussion
of a kind that, as I say, we have not infrequently. And it took about 40 minutes. And then, you know,
I thought, well, the next case-- I mean, how long
is the next case going to take? And the next case was, like,
everybody said their piece. All nine of us said their piece. And then, it was, like, done. First, I thought,
that's sort of peculiar. If you told somebody
we spent forty minutes on this case and ten
minutes on the next case, and had a lot of interchange
and back and forth in this case and almost none on that case,
they would think you're crazy. But there are some cases where
we kind of know where we are, and we're not going to
convince each other. And I think, honestly, there's
a kind of sensible, almost unconscious decision. Like, at certain points,
you just don't rub it in. You know? We agree to disagree,
and we're not going to make ourselves feel
better about the institution by telling each other twenty-two
times why we disagree. But then, there are
these other times, where-- and not just
in arcane cases, but-- you know, but
in cases that matter-- where some people
are really uncertain. Maybe everybody is,
really, uncertain, because it's unbelievably hard. But often, cases where at
least a few people are really uncertain. And there is a lot of back and
forth, and a lot of attempts to persuade. And that's, you know,
just tremendously fun and exciting to be part of. DEAN MINOW: I think we're just
going to take one or two more. So let's-- AUDIENCE: Hi. I'm Pat Tamano. I'm a 1L in Section 3. And-- DEAN MINOW: No applause? JUSTICE KAGAN: I'm sorry. No applause for Section 3. AUDIENCE: Yeah! [LAUGHTER] Ooh, man. JUSTICE KAGAN: Everybody's
embarrassed by my color-war remark. AUDIENCE: We do have good
cohesion-- unit cohesion. You pointed out that you sit
in Justice Stevens's seat. And he's been rather vocal,
recently, about amendments to the Constitution that he
thinks should be reasonable. And obviously, he has a lot
more freedom, now, than you do, currently. Can you talk about
some ways in which, either in the medium
term-- the Constitution-- you anticipate some changes
that might be sort of reasonable in, actually, the text of the
United States Constitution-- either in the
medium term, to deal with legal controversies that
are particularly difficult? Or, if you can't speak about
that, maybe in the longer term, to deal with broader
changes that happen, over a longer time span,
such as the changing diversity of America, or-- JUSTICE KAGAN: Not my job. AUDIENCE: (UNHAPPILY) Yeah. JUSTICE KAGAN: I feel very
strongly about that, actually. It's not my job. I mean, if there are people who
want to amend the Constitution, all power to them. Go ahead. But my job is to
interpret, as best I can, and apply, as best I can, the
Constitution that we have. Just as, when we do
statutory interpretation, you know, I might have one
thousand ideas of new statutes that Congress
could come up with. But that, too, is not my job. And my job is to
interpret and apply, as best I can, the statutes
that Congress passes. And, you know, you
have to know, sort of, your role in the
governmental system. And the role that I have
is, like, enough, you know? It's big enough. And it would be, actually,
inconsistent with that role, to try to sort of reach
out and do other things. So "not my job" sounds
a little bit flip, but it's actually quite
a serious statement about what a justice
is supposed to do and what a justice is
not supposed to do. DEAN MINOW: So just two more. AUDIENCE: Good evening. My name's Theodore Yale. I'm a 1L, from Section 5. [A SCATTERING OF MUTED "WOO HOO"
CHEERS] Thank you! Going back to your
color wars comment-- JUSTICE KAGAN: Why are all
these people so dressed up? DEAN MINOW: For you. AUDIENCE: I've noticed that, in
the pub, in the basement here, the walls are red. And when the lights
are turned on, they turn a brilliant
shade of orange. And I'm wondering if there's
any subversive school loyalties at play-- [LAUGHTER] --behind that color choice. JUSTICE KAGAN: "Subversive
school loyalty?" I'm sorry-- DEAN MINOW: Princeton. Princeton. AUDIENCE: --to
turn-- to surround Harvard in so much orange. JUSTICE KAGAN: Yeah. I hadn't really thought of that. AUDIENCE: OK. [LAUGHTER] But about your job
on the Supreme Court. JUSTICE KAGAN: You
have a second question. [LAUGHTER] AUDIENCE: Yes. [LAUGHTER] Less important, less important. But I'm wondering if you can
comment, a little bit, on judicial independence. I know a big
intellectual topic that gets debated is the
accountability of the Supreme Court-- if there is not enough--
if not having them being politically accountable is
a good thing or a bad thing. I'm wondering if
you can just tell us about your personal
experiences on that front, as a young and
relatively new justice, if there have been any moments
where you felt like, wow, like, I really am independent,
and I can make a decision that I might not
have made, if I'd been in a political--
politically under the microscope? JUSTICE KAGAN: Yeah. Well, I think you
feel that right away. And I think we-- probably,
that's true for all of us. That you get into
this job, and you go through this
confirmation process, and you come out the
other end with a job unlike any that
you've had before, and a job that you're going to
have for the rest of your life, and a job in which you are not
accountable to any other actor in the political
system, and where your job is to do
what you think is right on the law,
regardless of what-- And, you know, that's an
incredible responsibility. And I take it
seriously, and, I think, all my colleagues
take it seriously. But you know, it's-- I mean,
you can't help feeling that way, about this job. There are the nine of us, and
we do not report to anybody, and we have our jobs for
as long as we want them. And that makes
you say, you know, every case that
comes before you, I'm going to take
all the arguments that different people
and different actors in the political system are
making, but I have to decide, myself, what I think that the
law is best interpreted to say. DEAN MINOW: Last question. AUDIENCE: Hi. I'm Robert. I'm from Section 2. I'm a 1L. [A SCATTERING OF MUTED "WOO HOO"
CHEERS] My question is, I was
wondering if you could explain, a little bit more, the process
of granting certiorari? Is it a negotiation? Is it a discussion? Is it like, when
you make a decision, and the most-senior
justice goes first, and then you go around the
table, does it get very heated? How does that work? JUSTICE KAGAN: Taking
cases, in other words? AUDIENCE: Yeah. JUSTICE KAGAN: The
process of taking cases? There's, actually,
a funny thing that I saw, about the different ways
of pronouncing "certiorari." [LIGHT LAUGHTER] And there was-- DEAN MINOW: Latin, we
can say whatever we want. JUSTICE KAGAN:
There was-- whoever wrote this blog started to
talk about, three Justices say it this way, and two
Justices say it this way. And we don't know the way
Justice Kagan says it, because-- [LAUGHTER BEGINS, STARTING WITH
DEAN MINOW] And it's true. I, sort of, plan my sentences,
never to have to say that word. [LAUGHTER] [LAUGH] But we get
almost ten thousand-- I think it's, like, nine
thousand-- petitions, every year. And we only take
about eighty of them-- seventy-five, eighty-- which
some people think is too few. Some people think we ought
to do better and take more. But even at the height of
Supreme Court practice, I mean, maybe they
took one hundred forty. So there are a huge number
that-- almost all of them-- are rejected. And we go through a
big process of-- most of us are in what we
call a "cert pool." And different clerks,
around the court, write memos on every
single one of the cases. And then we get those
memos, and some of us have our own clerks
look at all those memos. And so we get advice
as to whether this is a case that we should take. And then we apply
a set of criteria. And the criteria--
probably, the criterion that leads to the most
grants is-- just what I said, before-- is division
within the lower courts. So if the Sixth Circuit
decides a question this way, and the Second Circuit
decides a question that way, you know, we think that a law
should not be different in Ohio than it is in New
York-- the federal law. So that's the reason we
take most of our cases. Some cases we take because it's
just obvious that these issues are of such magnitude that,
regardless, whether there's a split, you know, it's
the Supreme Court that-- given the importance of
the issue, for the nation, it's we who should decide it. So you know, we all
come into conference-- of the ten thousand petitions,
and that many memos that are interspersed,
throughout the year. Anything that any one
person wants to discuss gets put on the
agenda at conference. It's called a "discuss list." So if I want to
discuss a case-- if I think cert should be taken
on a case, I just put it on. I say I want to do that,
and then we will discuss it. And then it takes four
votes to actually grant it. And yes, we will go
around the table, in the typical seniority order. And somebody-- it
will always start with the person who puts
it on the discuss list. So, in that case, like, if
I've put something on the list, I'll go first, and I'll try
to explain to people why I think we should take the case. And then it will go
with the Chief Justice and around the table. And if it gets to four,
then we take the case. AUDIENCE: Has it
ever been the case that a case come up that
you feel, personally, strongly about, and
maybe it doesn't fall into the previous two
categories you mentioned, and so you, personally, make
a case to take this case? DEAN MINOW: You've
asked a second question. [LIGHT LAUGHTER] You don't have to answer it. JUSTICE KAGAN: I don't. DEAN MINOW: No. JUSTICE KAGAN: Well. Well, uh-- [LAUGHTER BEGINS, STARTING WITH
DEAN MINOW] AUDIENCE: (LAUGHING) It's Okay. It's Okay. JUSTICE KAGAN: You know what? If it's an issue that's
important enough, if the court doesn't
take it, one time around-- Justice
Kennedy, I remember, once said this, to me,
at the very beginning. He said, you put something on,
if the court doesn't take it, and you are right that,
in fact, it is important, it will come up again. So. AUDIENCE: Thank you, so much. DEAN MINOW: I want to say to
you, as your former teacher, I hope you come up
again here because it's just a thrill to have you back. JUSTICE KAGAN: It's
a thrill to be back. [APPLAUSE] Okay! Shall we go? Thank you all! DEAN MINOW: You wanna go back--?
