A Conversation with Supreme Court Justice Elena Kagan

A Conversation with Supreme Court Justice Elena Kagan

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[APPLAUSE] I feel so far away here. They’re very big chairs. They are very big chairs. Hello, everybody. So this is Justice Kagan. [LAUGHTER] Used to be known as Dean Kagan. And Justice Kagan is an
alum of Harvard Law School and Princeton and Oxford. Spent some years in private
practice as a law teacher, and worked in the government
for three years or so. Four. Four years. And was dean of the Harvard
Law School for six years, and made enormous and
excellent changes to the place. And has come back this
year to teach her course and to have a conversation. It’s a pleasure
to be here, John. Thank you very much for
being here, Justice Kagan. Yeah. So shall we just leap
in with some questions? Sure. Who are all these people? [LAUGHTER] Oh. So these are our students. [LAUGHTER] And our staff and I
think there are probably some faculty out there too. And so I’d say– They’ve heard everything
I have to say. Mostly– no, no, no. These are mostly 1Ls. No, the faculty I meant. Oh, the faculty. So these are mostly
1Ls and LLMs. And I spoke with all
of them yesterday. So how many of you
are new students? 1Ls? LLMs? Pretty much everybody. OK, great. Welcome. Yeah. Welcome. OK. What did you tell
them yesterday? Uh– [LAUGHTER] In a nutshell. I told them, don’t be nervous. Don’t compare your insides with
other people’s outsides, right? Because everybody’s nervous. And then I told them
that a great way to be a terrific lawyer
is to listen generously to the other side. Does that capture
basically– yeah. OK, good. I’m glad they caught that. That sounds like good advice. Yeah. So that’s what I
want to ask you. You were a 1L in 1983, and
you sat in Sanders Theatre, and you went through the whole
experience of being a 1L. And so what was it like? How did you feel
about being a 1L? So long ago. [LAUGH] Who can remember? [LAUGHTER] I hope you can. [LAUGHTER] I loved being a 1L,
although I was very nervous. I mean, almost everybody
is very nervous, right? The only people who
aren’t very nervous are the people you
don’t really want to have anything to do with. [LAUGHTER] But that’s very few. I was very nervous. [LAUGH] But I actually loved it
pretty much right away. And I was quite– not everybody does, you know? Some people, it takes
time to figure out what they’re interested in,
what they’re doing here. But I was lucky. I loved it pretty
much right away. And I was surprised
by that, actually, because I went to law
school for all the reasons that people say not
to go to law school. Have you ever heard
these speeches about, don’t go to law school if it’s
just because you’ve eliminated all other possibilities? [LAUGHTER] Or because you want to
keep your options open, or things like that. That’s why I went too. That is why I went to
law school, you know? It was like– you
know, I wasn’t going to go through organic
chemistry and become a doctor, and you know, whatever. I mean, I sort of went to law
school without a good idea why I was there in a way. I actually even– you
know, when I was dean, I sort of encouraged people to
think about whether they wanted to go to law school
in ways that I didn’t. So I view it as really
good luck and good fortune. I had wonderful, wonderful
professors in my first year, and a wonderful section. And so I really enjoyed my
classmates and my teachers. And I just loved doing
law, thinking about law. And what I liked about it
was it was on the one hand really stimulating
intellectually. It was sort of like doing a
crossword puzzle every day. It had this sort of
puzzle-like quality to it, and it was very
challenging and hard. And on the other hand– and these two things
don’t always go together. Don’t even often go together. On the other hand, it
seemed as though you understood why it mattered. So in addition to being
intellectually very stimulating and challenging, it
was pretty obvious how much it mattered
to people’s lives, and how much you could do
with this sort of learning. And I loved the combination
of those two things as a law student
and as a lawyer. I mean, I think
that that is what has kept me in all my various
jobs really interested in what I was doing, is that kind of– you know, to coin
a phrase that has been used before,
intellectual feast aspect of law and law school. But also the kind of– you’re
doing something very real that can make a difference in
the world, for good or for ill, and hopefully for good. So that’s what I liked
about law school. Even at a time, as you
know, the law school was not as user-friendly
then as it is now. That is true. Yeah. They almost ignored
the students. [LAUGHTER] If we were lucky. [LAUGHTER] So you said you
went to law school because you weren’t quite
sure what you wanted to do, and you didn’t want to
take organic chemistry. And very similar
to my rationale. When did you figure out what you
wanted to do with your career? And was it in law school? Was it later? And I don’t mean, when did
you figure out you wanted to be a Supreme Court justice? I mean the stuff that
went before that. I don’t think I ever
really figured out what I wanted to do with my career. I mean, I don’t think I
ever had this kind of plan. So for example, in
law school, I sort of thought, one year in
law school, and it looks like the professors are
having a good time up there, and you’re pretty
interested in law. So you think, maybe
I’ll be a professor. But I wasn’t sure I
wanted to be a professor. I wasn’t one of these
people who sort of knew it. I just sort of thought,
well, that’s a possibility. That kind of looks interesting. But then I thought I should
try some other things. And I went out, and I
practiced law for a while. And then I thought,
well, I missed the academic side of
law, and I decided to go become a professor. But then, you know,
it just happened to happen that four years down
the road, one of the judges who I’d clerked for started
to work in the White House. And he said, come with me
and come into government. And I had always been very
interested in government and in politics and in policy. So I thought, well, that
sounded like a good idea, and I moved to do that
for four years, which I had had really no plans to do. It was just– I think a lot of
great legal careers are based on a kind
of serendipity, which is whether you
have a plan or not, just things happen that all of
a sudden throw you off the plan. Or if you didn’t
have a plan, it’s just– you look
for opportunities. And I think a lot of my
career has been like that. It’s just, I’ve had
the good fortune to have some opportunities
thrown my way. You know, at some
certain points, I came back to
academia, but then I decided to go into
administration to become what you are now, and
that’s a very different job. And then– I mean,
just to give you sort of an example of how fluky
life is, if you had asked me when I was sitting in
your job, well, what’s the next thing you’re going
to do, I would have said, well, the next thing
I’m going to do is I’m going to leave
the law entirely. I’m going to go be like a
university professor, right? And that will have nothing
to do with the law. And then as luck would
have it, you know, President Obama asked me to
become solicitor general, and all of a sudden, I was doing
law in a way that I had really never– I mean, I was really doing law. So– [LAUGHTER] –life is funny. I mean, I think life is funny. And some people have
plans and some people– and you know, great for them. And some people have
a particular interest, and they know that
this interest is going to sustain them
for their entire lives, and I admire those people. But it’s just not the way that
sort of it happened to me. What happened to me
was something more like things seemed interesting
at particular moments in time, and I sort of knew
enough to follow those particular interests
at those particular moments. And then I would sort
of backtrack and change and, you know,
veer around a lot. And for me, maybe because
I have a short attention span or something, that
was a really satisfying way to build a career. Did you have any sense in
law school of what you– sort of where you were headed? Did you know you
wanted to litigate? I mean, I guess I knew I
was interested in the more public law side of things than
to be a transactional lawyer. But I was really pretty open. That’s good. Good. And I tried to take
a lot of things in law school, which, if
you looked at my law school transcript, it had lots and lots
of different kinds of courses in it. You know, it had the
public law side of courses, but I took a lot of the
private law side of courses. And I liked that. I felt like I was
getting a good grounding in a whole lot of subject areas
and reaching out in ways that– it turns out that often,
I think, in law school that the things you really like
are not necessarily the things you expect to really
like, or vice versa. So of my favorite classes
in law school was tax. And I think I kind of took
tax because in some book, they told you tax is
a recommended course. I don’t know if– I don’t think Harvard
does that anymore. We don’t. But there was a– but I thought, well– But it’s a great course. It’s a recommended course. I should take it. But I had no expectation
of liking tax. And it turned out, I loved tax,
because it did have this sort of puzzle-like quality to it. And it was hard and
challenging and complicated and you had to stretch your
mind to make it all work. And I loved that. So could I ask you a
very practical question about law school? Because we have
a bunch of people in this room who have not had
their first law school class, and this may be on their minds. How did you feel about
being cold called in class? And then when you
were a professor, did you cold call people? So the answer to
your first question is I got over my fear of being
called cold very quickly. Because in my section, I was
the absolute first person to be cold called. [LAUGHTER] So first day of Civil
Procedure, which was our first class, Professor
Chayes, who was miraculously a great professor and a
great Socratic professor called on the first. And you know, it’s like a big
deal to be called on first, and you’re sort of terrified,
because you have nothing to compare yourself with. You don’t have the
ability to say, you know, everybody sounds
kind of fine, you know? [LAUGHTER] But I got it over with. And you know, I thought I
had done not terrifically, but not terribly. You know, someplace
in the middle, which is what mostly
everybody does. And so I lost my
fear of it early, and that was a very good thing. Because people shouldn’t
be fearful of it. It’s just like–
you know, it’s fine. I even liked it, actually. I mean– It keeps you alert, definitely. It keeps you alert,
it keeps you awake. And it’s actually a great
way to learn, I think. So the second part
of your question, I was a very Socratic teacher. I mean, pretty much
my entire class was me calling on people
and people answering. And the way I conducted my
class and sort of the speed and the rhythm of it, there
was not a lot of volunteering, because people sort
of knew that we were on sort of a train
that was going someplace, and that we were
going to get there through Socratic teaching. And that will be true
of some of your classes. It won’t be true of
others of your classes. People can teach in a– great teachers can teach
in a wide variety of ways. But I was really
Socratic, and did sort of everything that way. And you know, one of the
reasons I did that was I just think it helps people learn. It’s like it forces you to
be an active participant in the class, rather than
just to be a note taker. And it also develop
skills that you’ll use throughout your life,
whether you’re a litigator or whether you’re some
other kind of lawyer. But it actually helps to be
able to think on your feet and to say some things
even when you’re not sure that you know everything. Because people are often
going to ask for your advice. That’s kind of the
point of the whole game. And expect you to say
something that sounds, like, reasonably sensible. So I think Socratic teaching
helps develop those skills, including among people– there are lots of
people out here– but there are some
people out here who have already developed
those skills, right? They’re the people that were
on their debate team in college or whatever. But there are lots of
people like me who worked, and I think it’s a
good thing that some of your classes at least,
and certainly my class was one of these, just sort
of, like, got you into it. And got you into– I’ll say one last
thing about this. I really do think
that one of the most important things about the
law school is learning how– people always say learning
how to think like a lawyer, and that’s crucial. And you’ll sort of figure
out what that means as you go through your first year. But learning to
talk like a lawyer. Like, learning to
do lawyer talk. And you don’t do that until
you start trying to do it. And so I think it’s sort of
too easy if you don’t have some professors who aren’t– if you have all professors
who aren’t Socratic teachers, it’s just kind of too
easy to sort of sit back and let the world come to you. And I think the best way
to approach law school is really to be a kind
of active go-getter, and to try to speak law. So could I ask you a
follow-up to that question? So you said, you know,
the important thing is to learn to
think like a lawyer. So how would you
describe what it means to think like a lawyer? Yeah, so I’ll let– you know, everybody has
their own version of this. And what’s your version? [LAUGHTER] You’re used to asking people
questions, aren’t you? Yeah. [LAUGHTER] You know, I think
what lawyers do is they see the
structure of arguments, and they understand
the way that– they understand similarities
and differences, and they understand the way
rules and precedents relate to the underlying
policies in them, and that they can take a
problem and break it apart into its component parts
and put it back together, and then compare it
to other situations, and sort of make judgments
about how the law governs a particular situation. Does that sound right to you? That sounds completely right. And I’ll just sort
of add to that. I think– Phew! [LAUGHTER] An important part
is figuring out that with respect to most
legal arguments, I mean, and all the ones that you’re
going to be thinking hard about in law school, that there
are arguments on both sides, and to try to figure out how it
is that there can be arguments on both sides, and to be able
to weigh them and balance them. But that’s just an add-on
to everything you said. Well, so that leads me to
my next question, actually. So you know, there are
750 witnesses here. I quoted you yesterday
in my opening speech to the incoming students,
and I used this quote. And I thought since
you’re here, how often do you get to read
somebody their quote and ask them about it, right? What did you mean, and
what was the context? So here’s the quote, and then
I’ll ask you the question. You said, “I’ve
led a school–” I presume you meant this school. The only school I led. Yes, OK. “I’ve led a school whose
faculty and students examine and discuss
and debate every aspect of our law and legal system. And what I’ve learned
most is that no one has a monopoly on truth or wisdom. I’ve learned that
we make progress by listening to each other
across every apparent political or ideological divide.” So where did you say
that, and sort of, would you like to elaborate
on what you meant by it? Yeah, so I know exactly
where I said it. I said it in the opening
statement of my hearings to be a Supreme
Court justice, right? In your hearings before the
Senate Judiciary Committee, the first thing
you do is you have to make an opening
statement, and that was part of that opening statement. And you know, it was very
heartfelt. And I mean, I think one of the great
things about this place is that there are people of all
differing views and opinions, and that they actually find that
they can learn from each other, and that they do
learn from each other. And I think you want
to be in places in life where that’s true. I mean, I think that the world
is pretty boring, actually, where it’s an echo chamber. You know, where everybody thinks
the exact same thing you do. It’s boring, and you don’t learn
very much from it, because you already know it, you think. And if everybody thinks
the same thing you do, there’s just not a whole lot
of intellectual stimulation or challenge going on. So I like being in
places where there’s a lot of robust
debate about ideas, and here about ideas about law. And I do think that that’s
the way we make progress, because it tends to be true that
nobody has a monopoly on truth, you know? Somebody is true
about one matter, but the other person might
be true about another matter. And you know, you
can figure that out, or maybe you can realize that
the truth is in the middle. Or maybe you stick
to your own views, but you understand
even better why you have those views
by being presented with other differing opinions. So I think that kind of
intellectual diversity is what everybody should want
in an educational institution. And indeed, in other
institutions as well. I think institutions
work best when– and I’m sure that there
are exceptions to this, but generally that
they work best when there’s a kind of
robust debate going on. Now you know, I’ve been sort
of following all this sort of like the free speech
on campus debates with some attention, because
I used to do what you do. And mostly thinking that
I’m really, really glad I don’t do it anymore. [LAUGHTER] It’s fun. It’s a fun job, really. Yeah, OK. [LAUGHTER] But it makes me think
a couple of things. I mean, I feel myself– you know, if I had to confront
one of these debates, which thankfully I no longer do, I
think I would say to people, like, you know, sort of
two very different things. You know, on the
one hand, people, when they express
ideas, should always try to be civil to other
people, and should always try not to demean other people. And there are
precious few arguments that can’t be made without
demeaning people who hold different views, you know? So that’s on the one
hand, the importance of sort of civility
in discourse, and attention to how the way
you speak is affecting others. But on the other
hand, I think people should lose their thin skins. I mean, I think people
should just be a little bit– it actually helps in life to
be a little bit less sensitive, and to realize that if
everybody were perfect, everybody would say
everything in a way that caused nobody harm. But you know,
everybody’s not perfect. And as I said, you want
a robust debate of ideas, and you have to give people
the benefit of the doubt. But that’s exactly
what they want too. And I do think it helps
to go through life with a little bit of your
sensitivity worn down, and with an attitude that
you’re going to give people the benefit of the
doubt, and everybody’s trying to do what you’re
presumably trying to do, which is to debate
ideas in a serious way. So on this very point,
you work in an institution where there’s some range
of views and approaches to the law, right? And we had six of
you here last fall, and my observation is
you get along very well with one another, and
you always seem to get along well with one another. There’s a lot of
collegiality and humor and friendship and warmth. And so how do you
do that, right? I mean, you have
very different views. Sometimes you write
dissents from one another and you disagree about things. But you seem to be friends. So how does that work? I mean, I think we are friends. I think we like each
other pretty well, and certainly
respect each other, and certainly think
that everybody is operating in good faith. And that’s really important for
the way the institution works. Your old boss and my old
friend Justice Scalia used to say that if you
take what we do personally, you’re in the wrong
line of business. And I think that that’s true. I mean, it doesn’t mean
that we don’t take really seriously what we
do, and it doesn’t mean that we don’t
believe pretty strongly, including in cases
where we disagree, or maybe even
especially in cases where we disagree
that I’m right, the other person’s wrong. There’s something
important at stake. These are serious matters. They affect a lot
of people’s lives. And I think all of us know that. But I think we try very hard to
compartmentalize a little bit, and to say, you know, the
plain fact of the matter is that you can
disagree with people on a lot of important things
and still love that person, you know? And still think that person
is a wonderful person whom you want to
be friends with. And you know, I guess
you could say vice versa. You can agree with a lot
people on a lot of things, but not really think that
that person’s ever going to be your best friend, right? So I think that the two
things are pretty different. I mean, I think
that on the Court, there are instrumental
reasons for sure to get along with everybody and to maintain
good relations with everybody, because we’re all repeat
players, and the person who you agree with today is not
necessarily the person you agree with tomorrow. And the person you
disagree with today, you’re going to want their
agreement on something else tomorrow. So I think that there
are instrumental reasons, as there often are in life,
for maintaining good relations, even with people whom
you don’t think you share many views in common with. But I think it’s more than
instrumental, honestly. I think it’s sort of
an understanding, which maybe people develop
more as they grow older. But an understanding
that you can think things are really serious
and really important, but still, disagreement
on those things does not mean that the person
who is on the opposite side is not a really decent, good
person whom you will learn from and whom you will
become a better person by being friends with. That’s great. That’s great. All right. I have a very direct question
to ask you about being a Supreme Court justice. May I? OK. All right. Here it is. That sounds very scary. [LAUGHTER] Well, you can tell me. You know, what’s the best,
kind of coolest thing about being a Supreme
Court justice? [LAUGHTER] And then there’s a second
half to that question, which is, what’s the most
frustrating thing that you can talk about publicly? [LAUGHTER] You know, the best thing
is kind of obvious. It’s a pretty great job, right? I mean, if you care
about law, if you care about the
development of law, if you think it’s kind of bliss
to read and think and write about the most
important legal issues that there are in the world,
then it’s a pretty great job. And that’s what I
get to do every day. And I’m endlessly grateful
for having that opportunity. And as I said before,
it’s not just about, like, oh, these are really
sort of intellectually interesting questions. They’re obviously
questions that matter. And to have the opportunity– and it is an opportunity as
much as it is a responsibility– to be in the decision making
process as to those questions, I can’t think of anything
that I’d rather be doing. But you know, I suppose that the
most frustrating thing is not a question of public
or not public. It has to do with that. These questions matter,
and they’re important. And I often have strong
views about them. And the most frustrating thing
is when you’re on the case and you think it matters
and your position is right, and that position
doesn’t prevail. And you know, the times
that I want to sort of punch a hole through the
wall are those times, when I find myself on
dissent on something that I think makes a real
difference in the world, and where I think the right
legal arguments are the ones that have not prevailed. So you know, that’s frustrating. But as I said, I think that you
just have to learn to kind of– it happens, and it’s
serious, and it’s important, and it’s frustrating,
but you have to learn to put it in
the box a little bit. And you go on to the next case,
and you go on to the next case, and you go on to the
next case after that. And you try to make
sure that that doesn’t happen too many times more. Well, when you write a
dissent, who’s your audience, and what are you trying to– I mean, is it just that
you have a sense that this is my position in
the case, and I need to articulate my position? Or are you saying, I
want to get this out there for some future
moment when the court might have a different sense? Or are you trying to persuade
law students or lawyers? Like, what are you
thinking when you write a dissent in one of those
cases where you are on the– Yeah, I think it varies. There are different
kinds of dissents. You know, there are
some kinds of dissents that you write because
you think, look, in fact, there are two
sides of this case, and nobody should think that
this was a slam dunk case. You know, the losing
party shouldn’t think that this is, like, a 9-0 case. It’s not a 9-0 case. It’s actually a hard case. And somebody should express
the opposite point of view just to give a sense of
the different cogent legal arguments
that can be made. And then you move on, right? Then you turn the page. And the next time that
rule of law comes up, you have no doubt that you go
along with the majority opinion and with the majority
opinion’s implications as well. And you know, so you do
it because you thought that the other side was right. These questions are hard. Nobody should think that
they’re easier than they are. But it’s not like a
big kind of signal for the future in
any sort of way, including as to
your own behavior. I think there are other kinds
of dissents, which are more, here’s what I think
today, and I can tell you I’m going to think this
tomorrow and the next day and the next day too. And I hope that there will
be a time, whether it’s five years from now or 20 years
from now, when this decision will be rethought and revised. And you are writing
a little bit more not to just, like, the
parties and the case to say, this was a hard one. You had some people
who were on your side. But to say something
to the future. And whether the
future is law students or whether it’s
lawyers, I mean, there are– but to say something
to the people who are going to continue to be
thinking about this issue, to say that they should continue
to think about this issue, that this issue came
out really wrong, and should continue to
be sort of on the table. So I’m going to shift
gears a little bit. Still about the Court. Is there something quirky
or fun about the Court that most people don’t know,
and that you can say publicly? You know, just anything. Well, I feel like I used to
have an answer to that question. I guess I’m going to
give the same answer, but I feel as though
I have less standing to give this answer now. Because I think
that the weirdest, quirkiest things about the
Court are things associated with being the junior justice. And I was the junior justice
for about seven years, you know, until Justice
Gorsuch came along. So I could give this
answer for seven years. And I think now I
need to figure out a new answer to that question,
but I haven’t done it yet. So I’ll tell you about
being the junior justice. The junior justice had, like,
few important roles to play. And it’s really a form
of hazing at the Court. [LAUGHTER] The best of the roles
was the junior justice is supposed to write
down all the votes. Because when we’re
in conference, there are only the nine
of us around a table. And you know, none
of our clerks, none of the people from
the general clerk’s office. And so somebody
has to communicate to the rest of the Court’s staff
what it is that we’ve done. So the junior justice
has to do that. But there are a few other
things that the junior justice has to do. The junior justice has
to respond to anybody who’s knocking at the door. [LAUGHTER] So it turns out, there’s
this double set of doors. And as I said, there are
just the nine of us inside. But sometimes some
of my colleagues are a little bit forgetful. So they’ve forgotten
their coffee, or they’ve forgotten
their eyeglasses, or they need a different
set of papers from the ones that they have brought
into conference. So there are a lot of calls
that go out from the conference room, and then somebody will
appear at the door and knock. And no matter who
made the request, it will be the junior
justice who opens the door. [LAUGHTER] And a few years ago, a few
years ago, I did something to my foot, and I was
walking around for two months with one of those
boot contraptions on. And even then– [LAUGHTER] –everybody expected me to get
up and open the door, you know? So that’s definitely
a form of hazing. And then– [LAUGHTER] –and then the real hazing was
that the junior justice always serves on the
cafeteria committee. [LAUGHTER] So it turns out that
there’s a cafeteria committee in the Court. And really, truly, you go
to these cafeteria committee meetings. And you think when you are
just confirmed that you’re kind of hot stuff, right? Because– [LAUGHTER] –you’ve just become a Supreme
Court justice, you know? And you’re sitting in
this room, and they are talking about what
happened to the good recipe for the chocolate chip cookies. [LAUGHTER] You know, that does
sound important. [LAUGHTER] And then you’re
kind of the conduit. So you go up to lunch. We have lunch together a certain
number of times every month. And people will say, you know,
the soup’s been a little salty. [LAUGHTER] And you’re supposed to
do something about this. [LAUGHTER] So being dean was
good preparation. Yes, exactly. Exactly. [LAUGHTER] And then somebody else
will say, I don’t think it’s salty enough, you know? [LAUGHTER] So yes. Being dean was good preparation. I remember the day
before I was confirmed, the Chief Justice’s
counselor came to my office in the
Department of Justice where I was solicitor
general at the time to give me a sense of
what was going to happen over the next few days. And he told me that I
was going to be appointed to the cafeteria committee. And I said, Jeff,
I do cafeterias. [LAUGHTER] Because we had spent so much
darn time doing this cafeteria. I know. [LAUGHTER] They don’t know what the
food was like before, right? It’s very good now, yes. All right. So that does seem quirky. OK. A more serious question. What makes for a
truly great lawyer? For a truly great lawyer,
I think it really depends. I mean, there are a
lot of different kinds of lawyers in the world. And so what makes for a
great transactional lawyer is actually not the same things
as makes for a great litigator. And within litigation, what
makes for a great trial lawyer is not the same
things as what makes for a great appellate lawyer. And it might be that there
are some people who would be great in any of these fields. It might be. But the qualities are
actually really different. And one of the things that’s
sort of interesting to learn as you go through law school
and as you go through life is which qualities
you think you have, and which qualities you
enjoy developing, you know? Which muscles you like using. Is it the kind of sit around
a table and strike at a– work out a deal quality? Or is it the kind of
down and dirty street fighter litigator quality? Or is it the more sort of
intellectual litigator, maybe at the appellate level? I mean, there are just so many
different kinds of lawyers, using so many different
kinds of skills. So I guess– I mean, do you have an answer
to this where you just say, like, one set of things
is in common to everybody? You know, I think lawyers– I mean, I think it
relates back to– I completely agree with you. I think that there are
different qualities that people bring to the
table in different kinds of lawyering. And I think it’s also true that
people who have law degrees end up doing lots
of different things. And they do policy, they do
finance, they do the arts. And I think being a lawyer
and having lawyer skills and thinking like a lawyer’s
helpful in all those. I think the one thing that
lawyers have in common is that they’re
deeply analytical, and that they can
really look at a problem and break it down to
its component parts. And I think that’s a
very, very useful skill. And so I think
that’s very useful. I also think it’s useful– Yeah. I mean, you know,
a lot of lawyers have to be deeply analytical. You know, honestly, I’ve met
a lot of great trial lawyers in my life who were not
deeply analytical people, and did do a fantastic
job for their clients. So I don’t know. You know. [LAUGHTER] I’ll take that as a
friendly amendment. [LAUGHTER] So how important is
it if you’re a lawyer to be upfront about the
weaknesses in your case? Well, I think it depends
on context, honestly. So that’s, I suppose, another
thing where I’m going to say it depends. Like, what kind of lawyer are
you, and what are you doing? You know, even at our
court, for example, to be upfront about the
weaknesses of your case, you never want to
be in a position where you’re lying to us. You never want to
be in the position where you’re pretending
that something is true when it’s not true. But on the other hand, I
don’t think for the most part that I tell everybody who
appears at the Supreme Court, well, just come and be
upfront about the weaknesses of your case. You know, good brief writing has
to respond to other arguments, has to try to address what the
weaknesses of your case are. Good oral advocacy
at the Supreme Court certainly has to be extremely
responsive to questions, and understand that the
questions will focus on the weaknesses of
your case, because that’s what matters to the judges. And that you shouldn’t run
away from those questions, that those questions are an
opportunity for you to try to dispel some of
the judge’s concerns. So I think you can’t be
oblivious to the weaknesses of your case. You have to, you know, sort
of meet them and confront them and try to explain why
they’re not dispositive, and why the court should
rule for you nonetheless. But that’s not to say– so here’s what it’s not to say. When I became SG, one of
the justices told me– Justice O’Connor,
who had recently retired from the
court, and who I had gotten to know a little
bit during my time as dean. And she said to me, you
know, it’s very important that the solicitor general act
a little bit less like a lawyer and a little bit
more like a judge. And her idea was that the
solicitor general in particular had a different kind of
responsibility to the court, maybe because the solicitor
general was such a repeat player. Maybe because the
solicitor general was sort of part of the
broader institutional fabric of the court, that the
solicitor general had to be, like, very upfront about
the weaknesses of her case. And all I can say is
that I tried that once. [LAUGHTER] It didn’t work out so well. [LAUGHTER] So I went back to thinking
like a lawyer again. [LAUGHTER] Thank you. Good. All right. So I guess what I’d
like to ask you– this is another kind
of quirky question. So last year when we
talked, we talked about who the funniest justice was. And for a long time, Justice
Scalia had been voted– you know, somebody had
gone out and counted how many laughs people got,
and it was Justice Scalia. And then last year, it was
Justice Breyer, I think. So who do you predict is going
to be the funniest justice in the coming year? They’re actually– let me just
fill people in on what this is. That actually is the sort of
ridiculous but kind of funny thing that a law
professor over at– I think he’s at BU– does. Which is, if you look at a
transcript of a Supreme Court oral argument, it
tells you where there is laughter in the courtroom. So you know, it
says, Justice Breyer, blah, blah, blah,
blah, blah, blah, blah. Bracket, laughter, right? [LAUGHTER] And this law professor
goes through, and he counts all the laughters. And then– This is a tenured
professor probably. [LAUGHTER] Although I think he’s been
doing it for years, you know? And then he keeps
track of it all. And now that tweeting
has taken over the world, he actually tweets
frequently about it, just to tell everybody who’s
in first, who’s in second, who’s in third, whatever. It always used to be
the case, you know, when Justice Scalia was alive,
it was invariably the case that Justice Scalia was
the funniest justice by this measure. And now I am afraid it– not afraid, but there
is a new funniest justice by this measure. I don’t expect that
the first position will be taken over
by anyone else, and that’s Justice Breyer. So Justice Breyer
continues to be, I think, the funniest justice. And may I ask, what
makes him funny? A different thing from
Justice Scalia, actually. It just turns out that just
as though there are many ways to be a great lawyer,
there are many ways to be a funny justice, you know? [LAUGHTER] So Justice Scalia
was always funny, because he would have these
very sharp, very quick retorts to people that were
just, like, pretty funny. [LAUGHTER] But in sort of an– often, not always, but often
a little bit acerbic, right? Yeah. Yes. I worked for him. Yeah. [LAUGHTER] But just like this very–
this real sharpness, right? Justice Breyer is funny
because of his hypotheticals. Justice Breyer gives
these hypotheticals, and they’re often unusual. [LAUGHTER] And people– and
they’re funny too. Yeah. Was he that way as a professor? He was your antitrust professor. He was my antitrust
professor, yeah. Yeah. Was he funny as a professor? I don’t remember. He was a very good professor. And we were on the losing side
of an important antitrust case this year, and he
wrote really what I thought was a marvelous
dissent in this case. And I thought, I was taught
antitrust by the right guy. [LAUGHTER] Even if we couldn’t convince
some of our colleagues. So I have one more
question for you, and then if we have a
little bit of time left, could we take a couple of
questions from the audience? All right. So here is my final question,
and it’s a very open-ended one. And you may have
already answered it in pieces in some of
the things you’ve said. But we have a lot of
people in the room who are brand new law students. And so what advice
do you have for them as they are embarking
on this great career in this great profession? Well, I mean, I’m
sure there’s, you know, as many different
pieces of advice as there are people
in this room. But I guess what I
used to tell people all the time when I did what
you do now, especially talking to first years, I
used to tell them, really, like, make friends. In other words, you can
think about the first year of law school as
just, like, really working hard and having
your nose stuck in a book all the time. And I would be the last person
ever to say, don’t work hard. I mean, I think hard work
is important in school, as it is in life. But at the same time, one
of the great, great things about Harvard Law School
is your fellow students, and getting to know as
many of them as you can, and learning from them. I mean, some of my best
friends still are the friends that I made in law school. And so I think that
that’s super important, both for just your happiness
in this institution and afterwards, and also for
what you can learn from people. That you will learn as much
from your fellow students for sure as you will
learn from the faculty. But you can also learn from
the faculty, so I guess– [LAUGHTER] –the second piece of
advice I would give is, you know, to
make an effort to get to know at least one member
of the faculty really well in your first term. And that might require
knocking on a door, going to office hours, whatever. But to make sure that
you go and, you know, learn more about what some
faculty member whom you like or whose subject matter
you’re really interested in, what that person
does, and how he or she thinks about the world. And so that’s the other
challenge I would give you. And then I guess
the third, which maybe is a little bit less
useful for the first semester, but goes back to this thing
about sometimes what you really like in law school, you
find in surprising places. I mean, to sort of challenge
yourself a little bit, and to do things
other than the ones that you know you’re interested
in, or other than the ones that you know you’ll be good at. And to just take a
little bit of advantage of the incredible resources
that the school has to offer. I mean, why come to
a school like this? You know, one reason
is the students. One reason is the faculty. And then one reason is
this incredible diversity of experiences and
academic resources that this school has to offer. And you know, part
of taking advantage of that is finding
that one little niche that if you went to another
law school, it wouldn’t have. But part of taking
advantage of that is also to try a
bunch of other things. And I guess I would
say to do that. Great advice. And sign up for amicus. No. [LAUGHTER] Inside joke. Anyway– [LAUGHTER] So I think we have time to
take a couple of questions. So I see a hand over there. Do we microphones
that we can deploy? Yes, we do. How excellent. Hi. My name’s Emma. Thank you so much for
speaking with us today. It’s been really incredible
to learn from you. The law can often be a
very male-dominated field, and I know the Supreme
Court historically has been incredibly male-dominated. And I was wondering if you
could speak to your experiences being a woman in law and being
a woman on the Supreme Court justice, and any advice
for the many of us who are hoping to navigate
those complexities. OK. You know, in my
life right now, I’m reminded every day of
how far women have come, which is not to say
that there isn’t much more to be done in this field. But the reason I’m
reminded of this is that I work every day
with Justice Ginsburg. And Justice Ginsburg and
Justice O’Connor as well was sort of in the first
generation of women Supreme Court justices,
and then Justice Sotomayor and I in the second. And there are about
20 or 25 years in between those two
cohorts of people, and everything happened
in those 20 or 25 years. I mean, it’s sort
of incredible when you think about Justice
Ginsburg and Justice O’Connor coming out of top
tier law schools, and they were the stars
in their law schools, and nobody would hire them. You know, law firms
wouldn’t touch them. Judges wouldn’t hire them. They had to create these
careers entirely from scratch. If you have seen the many
movies about Justice Ginsburg– [LAUGHTER] –or read about Justice
O’Connor’s life– Justice O’Connor has a
wonderful autobiography– you know, you know this, that
just the kinds of things– the doors that
were closed to them were really– it’s quite amazing
that they created these years, notwithstanding the fact that
basically, everybody wanted them to be their secretary. And you know, by the
time I got to law school, that just was not true. You know, when I
went to law school, this law school was 40% women. Now it’s closer
to 50%, of course. But you know, 40%
is still a lot. And you know, law firms
wanted to hire you and judges wanted to hire you. And there were no
doors that were closed. Now I do think that the
challenges for women now in the law have more to
do with the way the law is structured to demand hard
work and to make it more difficult to combine
a high-flying career with a great family life. And that’s, you know,
in different respects, a problem for both
men and women. But certainly in a world in
which women more often do more than their share of
family responsibilities, I think that’s the challenge
for the structures we set up to provide legal services. But I don’t know. I think we’re going in
the right direction. Justice Ginsburg always says,
you know, when she was asked, like, what’s it like to have
three women Supreme Court justices, her line is something
like, well, five would be good. [LAUGHTER] And then she sort of
pauses, and then she says, nine would be good. [LAUGHTER] So maybe one day. I think that’s a great
thing on which to close. And I want to thank
you, Justice Kagan. Please join me in
thanking Justice Kagan. [APPLAUSE] Thank you.

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