This year, Justice Elena Kagan visited the Robert R. Merhige Jr. Moot Courtroom. Last year, Justice Stephen Breyer helped dedicate the very same courtroom; and in recent years, Justices Scalia and Kennedy have both come to campus.
The justice sat down with Dean Wendy Perdue for a conversation that ranged in topics from her various career roles to what goes on behind the scenes at the Court.
Kagan’s legal career began when she clerked for both the U.S. Court of Appeals for the District of Columbia and later for legendary Justice Thurgood Marshall. She’s also been in private practice, served as an associate White House counsel, taught law, and served as dean of the Harvard Law School. That was all before President Obama tapped her as the 45th solicitor general of the United States, and then as a Supreme Court justice in 2010.
“I can’t keep a job,” Kagan mused. “But I think this job, I’m keeping.”
She accepted the post of solicitor general knowing she was relatively inexperienced for the role. Before representing the government in Citizens United, her last appellate advocacy had been during a simulation her 1L year at Harvard. Her later work as a justice, she says, has given her appreciation for the challenges of both sides of the podium.
“It’s really clear to me which side is harder,” Kagan said. “It sort of behooves us all to remember once in awhile that the person at the podium has a really tough job and to give them a chance to do it.
“The thing I’ve learned is necessary in almost any job a lawyer can have is to be a good listener,” Kagan said. “And that’s something I’ve tried to develop over the years that I think as a young lawyer I maybe didn’t understand as well as I do now.”
Kagan, whose father was a lawyer, admitted she didn’t always aspire to join his profession.
“I don’t think I really did want to be a lawyer,” Kagan said to room full of laughter. “The truth was I never thought what my father did was very interesting. Now I think it seems enormously interesting, but when I was a child, I didn’t really get it.”
The conversation also revealed a slice of what life is like behind the scenes at the nation’s highest court. Kagan acknowledged her position as the Court’s most junior justice includes some limitations. At their Friday morning conferences, she’s the last justice to voice her opinion and offer a preliminary vote on cases. The justice admitted that asking strategic questions at oral argument is often her only opportunity to bring up important issues to her colleagues before they vote at conference.
Kagan also fulfills two special duties at conference based off her seniority. “Every once in a while there will be a knock, and the junior justice has to scurry up to get the door.” Kagan said of the justices-only meetings. “I think it’s sort of a hazing ritual, really. The other thing I do is I take careful notes, because I’m the person who has to communicate to the clerk’s office all of our votes.”
Kagan spoke to the role that clerks play in helping the justices to decide which of the 8,000 to 9,000 petitions will be granted a hearing each term.
“They are by no means junior varsity judges,” Kagan said. “But they help us do our work.” Each justice uses his or her clerks differently, Kagan explained further. In her chamber, she consults all of her clerks on each case, rather than assign one for each granted petition; and while she has them draft initial rulings, the justice always writes her own opinions.
“I’m quite sure that I have had clerks who are better pure writers than I am,” Kagan said. “But it’s not the way I write. I don’t think through a problem until I write through a problem.”
Elaborating on her writing style, Kagan shared that she approaches opinions much like she used to approach class preparation. Observers have pointed out her colloquial style in opinions, and she said that she hopes her use of analogies and examples helps communicate complex sets of ideas in a way that is both easy to grasp and remember.
But her labor is just part of the picture. There’s also the rest of the justices to consider, and some of her favorite material, she says, ends up on the cutting room floor when working together with her colleagues. Overall, she painted a picture of a less fractious group of people than is commonly portrayed.
“We do agree more than people know and are given credit for,” Kagan said. “Even the ones that are just five votes require a number of people to come together and agree on a particular way to solve a problem. That sometimes takes a lot of back and forth.”