September 19, 2011
Before an overflow crowd of students and faculty in the Ames Courtroom, U.S. Supreme Court Associate Justice Elena Kagan ’86 and HLS Dean Martha Minow engaged in a wide-ranging conversation about the current high court, Kagan’s storied career, and other issues during the Honorable S. William Green Lecture in Public Law, established by Patricia Freiberg Green in honor of her husband Congressman Bill Green ‘53. Kagan, who served as HLS Dean from 2003 to 2009, when she was appointed U.S. Solicitor General by President Barack Obama, spent part of the week at HLS leading a reading group.
For over an hour, the two former colleagues engaged in easy banter that was peppered with examples of Kagan’s renowned sense of humor. Noting that Kagan remains the same witty, down-to-earth and engaging person that made her so popular as HLS Dean, Minow asked Kagan a series of questions, ranging from her favorite classes when she was a student at HLS (civil procedure and torts, Kagan answered, along with Larry Tribe’s constitutional law course) to whether she found it challenging to put aside personal feeling when arguing a case as Solicitor General, the position she held for over a year before Obama appointed her to the Supreme Court last year (Kagan said it was not a struggle, as she recognized her role was to serve the long-term interests of the U.S. government.)
Despite often-sharp ideological differences or approaches to constitutional interpretation, the high court is a warm and collegial place, Kagan said, noting that the two justices with the closest friendship are Antonin Scalia and Ruth Bader Ginsburg. Arguments over the legal issues before them don’t affect personal relationships, Kagan said, because the justices are keenly aware they will be serving together for years to come. In response to a question from a student, Kagan said the court often makes its best decisions when there are strongly divergent viewpoints because the justices listen carefully to each other even as they continue to disagree, and the institution and the nation benefit from this range of thoughtful perspectives.
Asked by another student about serving as the court’s fourth female justice, Kagan said she doesn’t believe gender makes any difference in the court’s decision-making process; however, the fact there are currently three women on the court—and that visiting groups of young people see this as only natural—speaks to the incredible progress women have made in the past generation, she added.
Minow inquired about a now-famous photograph of Kagan as a high school student wearing judicial robes and holding a gavel. While some have suggested the picture proves Kagan’s longstanding ambitions for the bench, she said that the truth is quite different: before yearbook pictures were taken, she and others in student government ransacked the drama department’s costumes and she ended up with the black robe. At that point, Kagan had no interest in becoming a lawyer, she said. Indeed, she enrolled in law school only because she didn’t know what she wanted to do in her life and hoped to keep her options open—an approach that, once she became HLS dean, she warned potential law students to avoid. Luckily for her, Kagan said, she discovered that she loved the study of law at HLS, which she described as a magical place in terms of intellectual stimulation. She urged the students in the audience, many of whom were 1Ls, to take advantage of the many intellectual riches HLS offers.
With so many students in the audience considering their career paths, Minow asked whether Kagan found private practice or government service more personally satisfying. Kagan—who as dean had urged students to make a significant commitment to public service—said she enjoyed both, adding that for most lawyers, there is time for both, either by alternating between jobs in the two sectors or by doing pro bono work while in private practice. She said that for herself, the joy of public service has been incomparable, especially when she felt she was making a difference to the broader community.
Kagan said she loved serving as Solicitor General and, ideally, would have liked a few more years in the job, which was the ideal training ground for joining the high court. As Solicitor General, the first case she argued was the highly controversial Citizens United v. Federal Election Commission, in which she argued on behalf of upholding the McCain-Feingold Act, which placed certain limits on corporations and unions broadcasting electioneering communications. Kagan said that any nervousness she felt heading into argument was assuaged by her conviction she would lose, since the Supreme Court had clearly signaled its intention to strike down certain provisions of the law, which it ultimately did.
Today’s Supreme Court is “hot,” Minow noted, with justices interrupting frequently to ask questions during oral arguments. Kagan agreed that advocates often find it challenging to make their points before they are hit with another question. Still, Kagan said, the level of advocacy before the high court is extremely impressive, in large part because a specialized bar of highly experienced Supreme Court advocates has developed in the past couple of decades.
As the only member of the Supreme Court without prior experience as a judge, Kagan said she is still experimenting with the mechanics of the job including what tasks she assigns to her four clerks and which she retains for herself. She said she uses her clerks to discuss cases and provide her with suggested questions for oral argument, and that she has a clerk write the first draft of her opinions. However, she always rewrites the opinion entirely, no matter how well-written it is, she said, because she thinks problems through by writing, and she wants her own distinctive voice to be clear.
As the junior associate in a very seniority-oriented institution, Kagan finds herself with a number of clerical tasks, including taking notes and also answering the door during conferences since there are no outside personnel present. It often happens that one of the nine will have forgotten their eyeglasses or coffee, and Kagan will find herself juggling the two contradictory tasks of trying to keep an accurate record while having to jump up to answer the door. She also explained that she is on the court’s cafeteria committee, a position some might view as humbling but which she has embraced and for which she has experience, having overseen the reconstruction of the Harkness Commons at HLS. At the request of one of her clerks, Kagan got the court cafeteria to add a frozen yogurt machine. Now, just as she was known at HLS as the “coffee dean” for instituting free coffee for students, she expects to be known as the “frozen yogurt justice.”
The Green Lecture marked the establishment and celebration of The Honorable S. William Green Professorship of Public Law at HLS. David Barron ’94 (Harvard College ’89), an expert in constitutional and administrative law, who recently served in the Obama Administration as acting head of the Office of Legal Counsel, has been appointed to the chair. Green served eight terms in the U.S. House of Representatives beginning in 1978 after a distinguished career in state politics and at the U.S. Department of Housing and Urban Development, where he was a leading advocate for affordable housing.