Kagan Talks About Life on the Supreme Court

CHICAGO --- U.S. Supreme Court Associate Justice Elena Kagan, during a relaxed discussion on stage with Dean Daniel Rodriguez at Northwestern University School of Law Tuesday night (Feb. 3), revealed she tells her new law clerks that they “have the worst job in the building.”

That’s because even the best prose the law clerks include in their drafts, Kagan said lightheartedly, won’t end up in her final opinions. 

Visiting the law school as the Howard J. Trienens Visiting Judicial Scholar, Kagan offered straightforward, and often witty, remarks about her fascinating career during her responses to a series of questions from Rodriguez -- and afterward, from the law students, who lined up in the school’s Thorne Auditorium to engage with her.

She covered a lot of ground, from a behind-the-scenes look at how closely she works with her law clerks and the surprising collegiality of the court to a captivating anecdote about how her confirmation hearings led to a surprising commitment to hunting -- now a yearly occurrence -- with her Supreme Court colleague Justice Antonin Scalia.

She underscored the importance of having diversity in gender and race reflected among the justices sitting on the high court, because as such an important American institution, the court should reflect the diverse makeup of the country.

Kagan also shared her awe for Thurgood Marshall, one of the most influential figures in civil rights history. She clerked for Marshall when he was a Supreme Court justice and described him as the “greatest lawyer of the 20th century -- bar none -- not even a close contest.”  

Rodriguez began the discussion by welcoming Kagan back to Chicago, where she launched her academic career. He joked about his long-held ties to her, dating back to when they attended Harvard Law School, one year apart. Rodriguez, who served on the Harvard Law Review when Kagan was supervising editor, teased, “I still bear the scars.”  

A former dean of Harvard Law School, Kagan noted that she has been following Rodriguez’s career since law school.

“I have watched Dan from afar ever since and seen his meteoric academic career,” Kagan said. “Deans watch each other, and Dan was, has been and is now truly a superlative dean. Northwestern is lucky to have him.”

Robert Bennett, Nathaniel L. Nathanson Professor of Law at Northwestern, was among the constitutional law scholars in the audience. He said Kagan is a straight shooter.  

“She was extraordinarily candid about her job,” Bennett said. “I learned a lot about judging and indeed about the surprisingly pleasant interactions among the justices.”

Following are excerpts from the discussion:

Kagan’s work with law clerks

Kagan meets with her clerks continually, she said, and talks to them about every single case. She uses the drafts they write and the research they do to help her formulate her thoughts and goes back and forth with her clerks for feedback on opinions after she has written the first draft, she said. But she ultimately is the one who writes the opinions.

“I do my writing basically by myself,” Kagan stressed. “But I make [my clerks] write a draft anyway. I say to them at the beginning of the job, ‘You have the worst job in the building. You’re not going to see your sentences in the U.S. reports, but you’re going to have to write a draft anyway.’” 

Even the greatest writers among her law clerks ultimately don’t sound like her, she said.

“I want a Kagan opinion to sound like a Kagan opinion -- across opinions, across years.”
Besides, Kagan said, the actual writing of the opinions is crucial to her process of thinking through issues of any given case.

“There are a thousand things that I think I would not realize are real issues if I were just editing,” she said.

Diversity on the Supreme Court

Gender, racial and other diversity should be represented on the Supreme Court, Kagan said. “The reason that it is important has to do with the way people perceive the institution,” she said, “and there is something to be said about having an institution that in some sense reflects the country that the institution serves.”

Do the Supreme Court justices get along?

“You can get this impression of people who are really divided and even don’t like each other very much -- who are sworn bitter enemies,” she said.

The Supreme Court justices are placed together in a highly unusual situation and, in truth, she said, share great collegiality as colleagues and real friendships.

“There are nine of us, and we do this thing that only the nine of us do, which you can’t really talk to anybody else about,” Kagan said. “There’s a kind of bonding that occurs because of that.”

She was especially complimentary of Chief Justice John Roberts, who, she said, sets the tone of the court. “It’s a court with a lot of warmth and a lot of graciousness,” Kagan said. “And this chief justice is a very gracious man and a person who really cares about personal relationships, civility and, more than that, the real friendships and warmth among the members of the court.”

Andrew Koppelman, a constitutional scholar and John Paul Stevens Professor of Law at Northwestern, was heartened by those comments. 

“I was struck by how warmly she spoke of Supreme Court colleagues, such as Chief Justice Roberts and Justice Scalia, with whom she publicly disagrees so energetically,” Koppelman said. “I’m glad to hear that they all get along so well on a personal level.”

Hunting with Associate Justice Antonin Scalia

During a host of courtesy visits to members of Congress during Kagan’s nomination process, she was repeatedly asked to share her thoughts about hunting, she said, as a proxy question to get a feel for her views on gun rights and the Second Amendment. She said “no” each time to a series of questions from Congress members that went something like: Have you ever hunted? Does anybody in your family hunt? Do any of your friends hunt? 

“It was pretty pathetic, really,” Kagan joked. “I’m this Jewish girl from New York City, and this is really not what we did on the weekends.” Immediately, the sound of laughter erupted and filled the auditorium.

By what she estimates was probably her 60th office visit, Kagan promised a particular senator that, if confirmed, she would ask Justice Scalia to take her hunting.

“He (Scalia) thought that was hilarious,” Kagan recalled. “I said this is the only promise [to go hunting] I made in 82 courtesy visits, so you have to help me out with this.” 

During her first year on the court, Scalia took Kagan to a gun club where she learned to shoot clay pigeons. She has since gone on yearly hunting trips with Scalia and the regular group he hunts with, the last time to Mississippi to hunt ducks. “I thought duck hunting was kind of great,” Kagan admitted.

On John Paul Stevens, a 1947 graduate of Northwestern Law and a retired justice of the Supreme Court, whose seat Kagan filled

“He was terrifically helpful to me,” Kagan said. “Whether I had a question about how the court operates or what I should be thinking about as I join the court… He’s a fount of wisdom, a fount of good advice.”

Kagan regrets that she never had the opportunity to serve with Stevens, whom she described as “brilliant and nice, nice, nice -- Midwestern nice.”

“You all are awfully lucky to have him as an alumnus,” she said. “He’s a credit to your institution and an extraordinary human being.”

Kagan’s attendance at the State of the Union address

Kagan said she understands why a few of the other Supreme Court justices do not attend the State of the Union address.

“You do go there and feel kind of out of place,” she said. “It’s become very partisan and political, and that puts the justices in an odd situation. We just sit and stare straight ahead.”

Why go, then? “Even if Congress has become more partisan and the event has become more partisan, still I think there is something to this sort of event -- where the entire government gets together, and the American people get to see them all,” she said.

Part of her, too, finds the “spectacle of it all is kind of interesting.” It’s an opportunity, she said “to see the rest of the government -- whether it’s the president’s cabinet or the president or members of the Senate and the House -- there’s something impressive and glorious about that.”

Clerking for Thurgood Marshall, known best for his victory in Brown v. Board of Education

Clerking on the Supreme Court is a pretty heady experience for a young person, Kagan said, and that was especially true for her, because she clerked for “the person who did most in our time to advance justice in our society.”

She clerked for Marshall at a time when he was approaching the end of his career -- and of his life -- and was taking stock. He told stories that for her, she said, were life changing about “his childhood, his education and the years he spent at the (NAACP) Legal Defense Fund” and as an “incredible” appellate advocate for desegregation and trial lawyer.

Kagan was especially struck with the persistent danger Marshall faced as he crisscrossed the segregated South “to represent people who were charged with extremely serious crimes --murder, rape or whatever.” The all-white juries, she said, were not “necessarily ready to dispense real justice.”

Marshall’s stories “opened a window to this incredibly important part of the nation’s history, of the role that law can play in removing some fundamental injustices and of the role lawyers can play,” she said. “That was very inspirational to me and continues to be.”

On clerking for Abner Mikva

Mikva was a congressman from Illinois, became a judge and also served as White House counsel to President Bill Clinton. 

Kagan said her first job at the University of Chicago would not have happened without Mikva getting on the phone and calling all of the people he knew and saying, “Here’s what I know about Elena Kagan and why you should hire her.” He later gave Kagan the opportunity to work with him as associate White House counsel in the Clinton administration.

Because of that type of support so early in her career, she said, Mikva is perhaps number one on the list of people she can point to and say, “I wouldn’t be where I am today except for that person.”

“Justice Kagan credited two mentors who had made all the difference in her life as a young lawyer, Judge Abner Mikva and Justice Thurgood Marshall,” said Juliet Sorensen, clinical associate professor of law at Northwestern. “Not only was her recognition of them generous and touching, but it also was inspiring to the audience to imagine the enormity of the experience clerking for those two giants of the bar and bench.”

On Howard Trienens, for whom the judicial visiting scholar program is named

“Anyone that has lived in Chicago knows about Howard Trienens,” Kagan said during her remarks. “Anybody who has ever thought about or been part of the legal profession knows the great work that he did as a lawyer and really just as a figure in this community, not just at Northwestern, but in Chicago and throughout the whole legal profession. So it’s a real honor to be here.”

About the Howard J. Trienens Visiting Judicial Scholar Program

The Howard J. Trienens Visiting Judicial Scholar Program was established at the School of Law in 1989 by partners of Sidley Austin to honor Howard Trienens’ service to the firm and Northwestern.

Trienens, a partner at Sidley Austin since 1956, has been a member of the Northwestern University Board of Trustees since 1967 and chairman of the Northwestern board from 1986 to 1995. He received two degrees from Northwestern, a bachelor’s degree in 1945 and a J.D. in 1949. He was editor in chief of the Illinois Law Review. After graduating, he taught a course in criminal law at Northwestern University School of Law and was clerk to Fred M. Vinson, a former chief justice of the United States.

Past Howard J. Trienens speakers include Chief Justice of the United States John G. Roberts, Jr.; the late William H. Rehnquist, a former chief justice; Supreme Court Associate Justices Ruth Bader Ginsburg, Anthony M. Kennedy, Antonin Scalia and Sonia Sotomayor, and retired Supreme Court Associate Justices Sandra Day O’Connor and John Paul Stevens ’47 J.D.

Immediately following the program, Northwestern Law Dean Rodriguez said: “You spend so much time in the classroom and outside the classroom talking about this mysterious institution, the Supreme Court. We teach our students Supreme Court opinions, pore over them -- and this is a very important part of American history right before them.”

So far eight Supreme Court justices have visited Northwestern Law, Rodriguez noted in his remarks. “We are just short of a complete court.”

- Hilary Hurd Anyaso contributed to this report.