Justice Elena Kagan of the U.S. Supreme Court visited the University of Colorado Boulder campus for two days last week and on Tuesday gave the law school’s annual Stevens Lecture. Suzette Malveaux, director of the school’s Byron R. White Center for constitutional law studies, interviewed Kagan in a fireside chat about everything from the role of diversity in the judiciary to her colorful dissent in a 5-4 decision about political gerrymandering.
Students and faculty packed Macky Auditorium to hear from Kagan, and law students chosen in advance to ask her questions seemed in awe when they stepped up to the microphone. But Kagan also peppered the discussion with her signature dry wit, frequently prompting the audience to burst into laughter or applause. When Malveaux began listing Kagan’s professional credentials before her appointment to the Supreme Court — solicitor general, dean of Harvard Law School, clerk to former Justice Thurgood Marshall — Kagan responded with, “I couldn’t keep a job, really. Every four years I was off doing something else.”
Below is a selection of her discussion with Malveaux. The transcript has been edited and condensed for clarity and space.
On advice to law students deciding what they want in their careers:
Kagan: I guess what I would say to students about what to do with their years of law school and how to think about their legal careers is, you have this great opportunity to find out in law school what really moves you, what are the kinds of things that you really care about. And they’ll be different for all of you.
But if you come out of law school with a sense of, “This is the kind of thing that if I worked on, I would want to go to work every day. And I would feel as though I was doing the job for the purpose and meaning.” That is a great thing to come out of law school with, and not everybody does. You know, some people find it later on in their legal careers.
I mean, of course you’ve made your luck, and there are ways of putting yourself in a position to be offered certain opportunities. But for the most part, things come out of the blue, I think, and that’s the way life works. And I think too many law students and young lawyers put themselves in this plan [of] “First I have to do this, and then I have to do that, and that prepares me for the next thing.” And [they] say no to opportunities that sound really fun and exciting and interesting, because it’s not on the plan. And I think the most fun and interesting and exciting parts of most legal careers are when people do leave the plan and they notice something. They say, you know, “I’d never considered that for a minute, but gosh, that looks like a lot more fun than what I’m doing now.”
Malveaux: We have a lot of folks here from Colorado and there are certain legal issues that are salient in a square state like Colorado. What I’m thinking about really is Indian law, water law, environmental protection, those sorts of things, and wondering what your approach is. How do you go about educating yourself when it comes to those complex areas of law, but then also other cultures that you may not be intimately familiar with?
Kagan: I remember, it was my fourth year on the court, I was assigned an opinion by the Chief Justice, and it was a water law opinion involving Kansas and Nebraska and Colorado. Colorado was sort of a bit player in the litigation. And I do remember thinking, I know nothing about this. You know, it’s these big square states that have water problems.
There’s so many things we don’t know. You know, water law might be one of them. I once wrote an opinion, I think my next year, [on a] super complicated thing about electricity regulation, which I knew nothing about. So there are those kinds of things, but actually it happens all the time that there are things you don’t know and there are perspectives you’ve ever encountered.
And I think you’re just under an obligation to keep learning as a justice or a judge. When I got to the Supreme Court, I asked Justice Stevens for any advice he might offer me. And he’s a very humble man, and I don’t think he much liked giving advice.
But finally, and I really tried to push him, he said, “I think the best thing that I ever did was that I tried to learn something new every single day I was on the court.” And you think about that, this is a man who served on the court for 35 years, right? You could be forgiven for saying around year 34, I think I’ve learned it all. But he never did.
Malveaux: And I think one of the things that really brings up [is] the important issue of diversity, diversity on the court. As you know, the court as a whole does not reflect the demographics of American society.
If we look at the justices themselves, many are appellate lawyers from a very small number of law schools. Only three women on the bench; I do say only. And not a lot of diversity when you look at race, religion, ethnicity, even geography.
And so I’m wondering, what role do you say, if any, people’s experiences and backgrounds, shape how the court makes its decisions? And is there any good example, an example where you think it really mattered?
Kagan: Well, in general, I would say I’m a big believer in diversity in the judiciary. But for a different reason than that, which I’ll come back to. In general. I don’t think diversity
necessarily means that you’ll get a different set of views on the court.
I mean, if you think about women … there are lots of women in the world and they have all kinds of different views. My colleague, Justice Ginsburg, was once asked how many women should there be on the court. And she said nine, how about that?
Whether it’s five or whether it’s nine, you could have nine women who all have views like me, or you could have nine women [and] none of them have views like me. Or you could have some mix, right? Because women disagree on a lot of different things.
I can’t think of all that many cases where I thought to myself, “This would come out differently if only there were more women here.” The time when I most thought that … I have to go back more than 10 years ago, and I was Solicitor General at the time. And at that time, the court had only one woman on it. There was a case about a 13-year-old girl in a junior high school who was strip-searched. … And she was strip-searched by these male school administrators.
And I would say that it was not the greatest day on the bench for the Supreme Court. Because you could see Justice Ginsburg, in the questions that she asked, you could see she had a picture in her head of what this was like, and what it would feel like if you were that 13-year-old girl. But she was really the only one. And some of the men on the court were not having their finest hour, and were … just sort of not appreciating what this would have seemed like to a 13-year-old girl.
But they came out and Justice Ginsburg’s view, which was that it was an unconstitutional search, that view prevailed by an extremely lopsided vote. So in the end, she was able to convince people that this was a serious matter.
But as I said before, you can find people of all kinds of different views who are women, who are African American, who are Hispanic.
I think the more important reason to have diversity on the court is because … if the court doesn’t have legitimacy with the American public, it can’t do all that much. All kinds of different people should be able to look at the court and say, “I see somebody there who looks like me, who thinks the way I do, who has experiences of the kind that I had.” And that’s the kind of thing that gives the court public legitimacy.
Malveaux: I do want to go back to the idea of the role of dissent. I’m wondering for yourself, how you go about determining when it’s more important to dissent than to build consensus among your colleagues.
And I’m thinking in particular about the Rucho v. Common Cause case. The recent case … where the court decided that it was not the court’s job to intervene or try to resolve political gerrymandering cases. In your dissent you said, “Of all times to abandon to the court’s duty to declare law, this is not the one.”
So can you talk about what that was like for you?
Kagan: The court had tried to avoid the issue at times prior to last year’s decision, but when we finally got around to deciding it, there were really just sort of two options, and that wasn’t a whole lot of room for compromise. And some issues are like that.
Others are definitely not. And I definitely don’t think compromise is a dirty word in the courts or anyplace else. In fact, I think it’s really important in general to try to reach across perceived divisions and to try to see if you can find a common ground.
But sometimes you can’t. You can’t because you have no takers on the other side or you can’t because you can’t, because there’s a matter of fundamental principle at stake and there really isn’t a third way or a compromised position.
So this decision — the Rucho decision — was a decision and I felt very strongly about. It was about whether the courts could get involved in partisan gerrymandering. It was not about the constitutionality of partisan gerrymandering.
And it was a really extreme gerrymander that basically deprived people in their respective states have the opportunity to have their votes mean anything. It was representatives picking their voters rather than voters picking their representatives. And nobody really argued that this was constitutional, done in this sort of extreme way.
But the majority thought that the court just for them to get involved in it, that it presented no manageable standards for the court to decide when a gerrymander had gone too far. And I thought that was quite wrong and that courts around the country had actually worked pretty hard at developing exactly the kinds of manageable standards that the majority claimed to be demanding.
It wasn’t so hard to figure out exactly how these cases should be litigated, and that when it was that some gerrymanders should be declared off limits, like these two. It was perfectly obvious that these two should have been invalidated. I think I wrote a strong dissent. I hold that it was not so much angry as deeply saddened, because if the court is not going to protect the basic structures of our democracy, then it’s hard to know what the court’s role is.
Malveaux: The court is tasked with interpreting and guarding the law. And in light of the extreme partisan political climate that we’re in, the highly contentious Supreme Court confirmation process and even the significant division among the justices themselves in cases that have political implications … it’s hard for many Americans not to see the court as political. What would you say to those people who worry about the court’s independence?
Kagan: Well, I do think people’s views and concerns about this can be exaggerated. And I don’t think that’s right by a long stretch. These are only the most important cases or the most difficult cases. They’re all cases, or almost all cases which have involved lower courts disagreeing with each other. And notwithstanding that, about half of the cases we do each year are done unanimously.
Another very substantial chunk of the cases we decide are not unanimous, but they’re pretty lopsided. Or even if they’re closer, everybody’s all scrambled, and there’s no way to read them as there’s a conservative majority and a liberal minority or anything like that.
Now, I don’t want to dismiss the question at all, because I do think that there are certain sorts of issues — and they are hot button issues in the society, and they are often the issues that get the front page treatment in the newspapers — where there are really different ways of looking at those issues.
And I don’t think that that’s a matter of partisanship, you know, who’s a Democrat and who’s Republican, but I think it is a matter of different ways of looking at the Constitution, of understanding how to do constitutional interpretation, different views of particular constitutional provisions.
So for sure there are real differences on how we interpret some parts of the Constitution which matter a lot to people.
What I would say as to those issues is — Part of my message would be to the court and part of my message would be to the public.
I mean, I think that everything I just said suggests that the court should think hard when it’s doing this work about trying as hard as it can not to look politicized and polarized and deeply divided.
Because I think you’re right. We live in this polarized time and the last thing that the court should do is to look as polarized as every other institution in America. It would be great for the court to be seen as not that, and the only way to seem [like] not that is not to be that.
I guess I would also say to the American public that they shouldn’t jump to conclusions so fast on the basis of, you know, one decision or another, that we’re sort of trying our hardest to decide between difficult matters.
— Julia Cardi