Sept. 11, 2017 – U.S. Supreme Court Associate Justice Elena Kagan visited Madison last Friday to share insights and stories in a Q&A format with U.W. Law School Dean Margaret Raymond and those in attendance at U.W. Memorial Union’s Shannon Hall.
President Barack Obama nominated Kagan to the U.S. Supreme Court in 2010, while she was serving as U.S. Solicitor General. Kagan is the only member of the current court who had not previously served as a judge, but she was forced to catch on quickly.
“They throw you into the deep end of the pond and say swim why don’t you,” Justice Kagan told Dean Raymond. The two were childhood classmates and friends in New York City, and both went on to clerk for U.S. Supreme Court Justice Thurgood Marshall.
Just last year, U.W. Law School hosted Justice Sonia Sotomayor. Before that, the late Chief Justice William Rehnquist visited in 1992, followed by the late Justice Antonin Scalia in 2001. Kagan and Scalia served on the court together for almost six years.
After Justice Scalia died, in early 2016, the High Court continued as an eight-member court for more than a year as the politics of Scalia’s replacement unfolded. During that time, Kagan said compromises and continued deliberations were more pronounced.
“There were some fair number of times when if you just did things without thinking about consensus and compromise, you would find yourself stuck in a 4-4 tie,” Justice Kagan said. “None of us wanted for that to happen very often.
“When you have a nine-person court, you can say, ‘well we have a majority and there’s a minority and that’s the end of it.’ But with eight people, sometimes you can’t say that,” she said. “I think we all made a very serious effort to try to find common ground even where we thought we couldn’t. It sort of forced us to keep talking with each other.”
Dean Raymond asked whether the U.S. Supreme Court plays a role in the civil discourse of a country that seems polarized and divided on many topics.
“The job is not to model civil discourse for other institutions or society generally,” Kagan said. "The job is to decide cases. But I think that there are times when you can decide cases responsibly and consistent with your constitutional responsibilities in ways that also reflect some awareness of the dangers of division and the value of consensus.”
Trial by Fire
Justice Kagan’s rise to the U.S. Supreme Court was unique. Her father was a lawyer, but she did not attend Harvard University Law School with a focused purpose in law.
“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 because I couldn’t quite think of anything better to do,” Kagan said. “But then I figured out I loved law school.”
After clerking, Kagan practiced law briefly before turning to academia. She joined the faculty at the University of Chicago Law School, then at Harvard Law School.
During that time, Kagan served as associate counsel and deputy assistant to President Bill Clinton. From 2003 to 2009, she served as dean of Harvard Law School. Then President Obama came knocking in 2009, nominating her as the 45th Solicitor General.
She argued a number of cases before the U.S. Supreme Court from 2009 to 2010. Then President Obama tapped her to replace Justice John Paul Stevens, who retired.
“Sometimes, I think that basically my job as solicitor general was to persuade these nine people of a particular view,” Justice Kagan said. “And the only thing that changed when I became a justice was that now, I only had to persuade eight.”
Justice Kagan said her work as solicitor general may have better prepared her to be a U.S. Supreme Court justice than actually being a judge.
“All the [solicitor general] does is think about the court, think about individual justices and how their views might relate to a particular case,” Justice Kagan said. “So it prepared me very well in that sense.” But there was a still a steep learning curve.
“The first year was 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,” Justice Kagan said.
But the steep learning curve does not seem to dissipate for Supreme Court justices, Kagan said, who are constantly confronted with something new. But that’s the beauty.
“My predecessor, John Stevens, retired when he was 90 years old after having been on the court 35 or 40 years,” Justice Kagan recalled. “One of the things he said was that he loved the job because he was constantly learning something new. To be able to say that at the age of 90, after having served on the court for almost four decades, and to say, ‘this week I learned this amazing thing,’ you want to be that person.”
The most junior justice until Justice Neil Gorsuch joined the bench this past April, Justice Kagan noted that Gorsuch has taken over new roles as the freshman, including opening the conference room door and a post on the court’s cafeteria committee.
But Kagan will miss speaking last during the court’s closed conferences. The associate justices speak in order of seniority, and nobody speaks twice until all have spoken once.
“[Speaking] last gives you the ability to listen to everybody, to try and draw some conclusions about the whole ball of wax, to try and think about where the fault lines are, try to synthesize certain views and thoughts, and wrap up or sometimes try and move the conference, all of whose views have now been heard,” Justice Kagan said.
“This last month, I said my piece and thought okay. But then somebody else starts talking. And it has been very disconcerting,” Justice Kagan joked.
A Tip for Lawyers
Justice Kagan said the Supreme Court Bar is very high caliber, partly because many of them are repeat players that have gained the experience to be top notch advocates.
“Arguing in front of courts is difficult, but arguing in front of the Supreme Court is pretty much a nightmare,” she said. “You have 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.
“Often the justices aren’t really asking you questions … they don’t really care about the answers you give,” Justice Kagan joked. They are making points to their colleagues.
“I say this not in a pejorative way, I do it all the time. It’s an important part of the process that we are talking with each other up there. But it makes it extremely hard for the lawyers who do want to occasionally interject.”
Dean Raymond asked whether lawyers ever misfire, and what advice she might have for advocates who enter courtrooms to make arguments before justices or judges.
“You have to listen to the judges. Everybody goes up there and wishes they could repeat their brief. And it’s hard not to,” she said. “They think, ‘I have these five great points that I need to make.' But the justices are all very well prepared, we’ve all read the briefs. We know your five great points. We are not really interested in your five great points.
“The judges are asking you super hard questions, and they are almost always asking questions at your case’s weakest points. And there’s a tremendous temptation to answer it quickly and go back to what you think the strongest points are.
“But in fact, what you have to do is really have the fortitude to engage the weak points and not sluff that off and go back to a place where you are most comfortable."
Kagan said the court has no patience or tolerance for oration. “Be respectful, 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,” Justice Kagan said.