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tv   Conversation with Justice Elena Kagan  CSPAN  August 20, 2017 2:51pm-3:57pm EDT

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people were putting things online. >> watch on c-span and c-span.org. supreme court justice elena gives us inside to the closed-door deliberations with her colleagues after an oral argument and talks about the addition of neil gorsuch to the court earlier this year. this is just over an hour. justice kagan: good evening and thank you merrill. on july 7, 1981 i was driving a car into the phoenix law firm where i was a recent partner. our lawyers and our spouses had
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returned from a firm outing to prescott, arizona, which has the oldest rodeo on the fourth of july. of course aware of the rumors that then judge o'connor was being considered for the supreme court, we asked her some questions. as you would expect, she was dismissive of the rumors and quickly turned in a conversation to another topic. as i drove that morning, i turned on the news. just in time to hear president reagan say, she is truly a person for all seasons. i had missed the first part of his remarks and i had not heard him say who she was. during the rest of his remarks, he did not repeat the name. only when i of course was pounding my steering will asking, who is it? only when a reporter began speaking, i knew she was sandra day o'connor. i reacted the way many women lawyers reacted, with great
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emotion. we hope the world for women and law had changed that day and it had justice o'connor's impact on women's opportunities begin immediately. first, we immediately felt new energy and constant -- confident we could encompass what we wanted. also, she immediately disproved the notion that women could not handle the more amending areas of legal practice because if a woman could handle being a supreme justice, what areas should remain off-limits to female women? in addition, she was outspoken in educating those who would deny women opportunity. thousands of young women, many of us not so young anymore, tell moving stories of the difference
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she made when she spoke with them at their elementary or high school, at the law school, at the law firm, at bar meetings, and events she organized at the united states supreme court. she also used her position and her influence to further other objectives important to her view of the essential nature of a judicial system that ensures continued to the rule of law. expending that judicial independence is the essential underpinning of our democratic government. she cautioned such independence is tremendously hard to create. and it's easier than most people imagine to damage and destroy. working with organizations, local, national, and international, she spoke with leaders and judges and lawyers
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in numerous countries to help them reach their goal of forming and independent judiciary. her work to further judicial independence and reliance lead her to the realization that in this country, too few of our students and too few of our adult understand our government, our history, and our laws. alarmed and frustrated by the lack of civic education available to middle and high school students, justice o'connor began a project now known nationally as i civic's to teach citizens about our government. the justice and society program has brought together all of these important strands of justice o'connor's legacy through the sandra day o'connor conversations. i am delighted to introduce the first of them. i begin by returning to the different justice o'connor -- difference justice o'connor made for law. in 1981, this conversation would not have been possible. if we look to 1981 come up women who served as a state supreme justice, our task would not have been impossible, but it would have been difficult since only
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for women had ever held that position. fortunately, those things changed. our interlaboratory this evening, retired chief justice margaret marshall spent 16 years in private practice and general counsel to harvard university for joining the massachusetts supreme judicial court in a can at as only the second woman to serve on that court. she began -- she became its first chief justice and i can and i'm and it served in that capacity until 2010. her commitment to equality and justice, honed as she worked to end at minority rule in her home country of south africa, became a hallmark to her service to the court. and in 1981, it would have been not just difficult, but impossible to hear from a woman who served not only as the first
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a male dean of the harvard law school, but also as the first woman to serve as solicitor general. we can do so today because we are joined by justice elena kagan, the fourth woman to serve on the united states supreme court. justice kagan established a distinct career in public service and academia before being confirmed as solicitor general in 2009 and 2010 as associate justice on the united states supreme court. she continues to practice, not initiated, but much of expanded by justice o'connor, speaking publicly to expand the important role of the court and of the rule of law. these two women embody the traits justice o'connor has worked all her life to promote. they fiercely support judicial independence and the rule of
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law. they promote civic knowledge and engagement and they serve as role models and mentors to young students. we are fortunate to have them with us. please join me in welcoming justice elena kagan and it chief justice margaret marshall. just listening talk about justice o'connor, it reminds me just how far we've come and help throw i am to see you as the chair.
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as we look, you are clearly a glass ceiling breaker, a concrete ceiling breaker, whatever it was. i sometimes told justice kagan she is shorter than i am because she was knocking her head against concrete ceilings and mine were only glass. i begin by saying, what is your view of justice o'connor, anywhere, anytime, anyplace? justice kagan: thank you for asking me that question because i have a lot to say about justice o'connor. let me thank the aspen institute for inviting me here. it really is my honor to be here to honor justice o'connor at this inaugural lecture named for her. it really is my honor to be here to honor justice o'connor at this inaugural lecture named for her.
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everybody knows she is one of the most important supreme court justices. she was also one of the greatest supreme court justices and judges can be great for different reasons, in different ways. i think for justice o'connor, she was great because she did more good for this country than pretty much everybody in modern memory at least, to have served served on the supreme court. if you think about this, this is a little bit of a thought experiment. suppose you are creating a constitution, and somebody said, here's an idea. we are going to take all the really hot button, important issues in a society and we are going to make sure they all go to the supreme court. the court will have nine people
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in it, but really, for several decades, only one person is going to make all the decisions. [laughter] and everybody will be talking to that person, they'll be writing briefs to that person, they will be delivering their oral arguments to that person because they all know she will be the decision-maker. you can't do that why that one person? who is he or who is she? the answer is that, if it was justice o'connor, it would all turn out alright. [applause] [laughter] and i can think of precious few people whom you can say that about, that in case after case, issue after issue, the most important issues of the day, the hottest issues of the day, the most divisive issues of the day, that because of circumstances,
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justice o'connor very, very often, almost always, cast the deciding vote, and she did so in a way that demonstrated extraordinary wisdom, that understood something about this nation, about the people who inhabit it, about what they would and would not stand for, about what their best values were and she did this over and over and over again. and it really, we are such a better nation because of that. because of her decisions and her votes. there was a kind of practical wisdom that i think has almost never been seen on the supreme court that she had. this nation has a very good
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fortune, that for several decades, a person of that kind of tactical wisdom, actually -- that kind of practical wisdom, actually decided a lot of the most important supreme court cases. what is striking about justice o'connor as well is that after she retired, most justices after they retire, they putter around a little bit. some of them now, but occasionally, they putter around make a few speeches -- one of the most remarkable things about justice o'connor is that she had this whole second chapter after she retired. the i-civics program that she helped design and let for quite -- led for quite a number of years now has done remarkable
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things in terms of two g and students across the country about our system of government in ways that make it all seem like fun. and if this curriculum she has developed has been a great educational change. so she has had these two remarkable periods of achievement and accomplishment. i have to say that part of the reason for that is justice o'connor is a woman who likes to get her way. [laughter] so just to tell one personal story about that, it goes back to when i was a very young lawyer. it was a couple of years after i graduated from law school and i had the good fortune to clerk on the supreme court. justice o'connor had been there for several years already and i clerked for justice marshall . -- i clerked for justice marshall. i got to know some of the justices a little bit, conversations around the
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building, an occasional lunch or two. i got to know justice o'connor in that way. and justice o'connor at the time and i think throughout her tenure on the court, had an aerobics class. like 1980's style aerobics. [laughter] and one of the things justice o'connor liked was that she thought that all the women clerks should come to her aerobics class. [laughter] and there were not too many of us at that time, i think there were only seven of this and she thought a good turnout would be seven. [laughter] now, at the time i fancied myself kind of an athlete and i thought, i aerobics, that was not like real exercise, it was not for. and also, as some of you may know, basketball court at the supreme court, there was one there. and some of the staff and the clerks went and played
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basketball. and i thought basketball was more my style. so i went and played basketball. the basketball court at the court, until a few years ago, was basically, the floor was basically concrete. this meant that you really cannot play on it for an entire year without seriously injuring yourself. [laughter] one day, it was my turn. i tore some kind of ligament or tendon or something like that. i was hobbling around, on crutches for a few weeks. one day, i was at the court and i was walking down the hall with my crutches, making my way very slowly and justice o'connor was coming the other way. she stopped and she said, what happened?
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and i said, you know, i tore a tendon playing basketball. and she looked at me and she shook her head very slowly and she said, it would not have happened in aerobics class. [laughter] that's my justice o'connor story. [laughter] [applause] but i love justice o'connor and so it's real religion to be here. >> thank you so much. is that the end? [laughter] justice kagan: you what me to say a few more words? [laughter] >> just a wonderful story. one of my guests likes to get away and she was on the basketball court and not playing aerobics. let me go back to touch on the second part of her career, which both merrill and ruth have touched on. i come from south africa, which did not have an independent judiciary so i really loved watching justice o'connor and i
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want to read if i can't a short wonderful he's on her and i want to ask you about your education. this is a quote from justice o'connor, which she has used many times. the better educated our citizens are, the better equipped we are to handle the system we had. every generation has to learn it and we had some work to do. -- we have some work to do. i want to emphasize that when she is talking about the government she is talking about the function of the government. the three branches of government, where did you learn your civics education? worded elena kagan come from, because we have been teaching civics for a long time in our public schools and i know that your mother was a teacher, your brothers are teachers, i don't
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know why you are not a teacher but i think you are a teacher. where are they just were of figure out how the fabulous system of government works? justice kagan: i was very lucky and there were lots of kids that were nowhere near as lucky as i was. my parents were educated people, my parents were very involved in their community and in civic activities. and i went to great schools. so when all those things happen, it's easy to pick up things about how the government works. but not all kids are that lucky. when you look at some of the polls that are done, every year it seems another poll comes out asking about what people know about the american system of
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government. sometimes they will read the first amendment and say, do you agree with that? and everybody says it no. [laughter] about basic things about our structure of government, the institutions, the presidency, congress, the courts. it is always pretty shocking to me. i think what justice o'connor recognized was that schools had to do a much better job of this. and that is what she has done since she retired in the court. >> let me just ask you a little bit more. she has been mostly talking to her high school students in
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elementary school students. but i am astounded at how many, frankly, lawyers do not understand the difference between the constitutional democracy of the kind you just described. should law schools are doing -- should they be doing more and universities as well? justice kagan: i hope the people coming out of law schools -- >> they don't. we had another panel here and making edwards, the former congressman said law schools to not teach a thing about civics and democracy and he was emphasizing our colleges and universities. i'm talking about the basic structures. they might know about the great court final deciders, but it seems to me we have an awful lot to do. justice kagan: i think if you haven't done this by the time you go to college it is very possible that it will never happen. so i am a big proponent of doing it early. by first grade. >> we are not doing it enough at public schools. it's wonderful that you have i-civis but we just do not teach it anymore.
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your brother's teach civics? justice kagan: my brothers are both social studies teachers. >> do they teach civics? justice kagan: they probably do. [laughter] >> we will have them here next year and examine them. [laughter] justice kagan: i think you have a new job, justice marshall. marshal: i do, and it is having you back on the panel, it will make my life so much easier. so justice o'connor, you heard ruth talk about how she heard the news. i wonder how many people here know justice o'connor's confirmation hearings before the senate were the first to be televised in our nations history? i mean, if you want to be a first, you heard how she was quiet at first, where were you when you heard of her appointment? justice kagan: i don't remember where i was at that moment. >> did you watch? justice kagan: i completely agree with justice macgregor about how important justice o'connor was for lawyers of my
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generation, women lawyers. and also men lawyers of my generation. in terms of the path that she has set. when it came time for my confirmation hearing, you get up in front of the cameras and you are allowed to speak for five minutes and rank the people who ought to be thanked and two of the people i thanked were justice o'connor and justice ginsburg because of that generation of women lawyers and justice marshall, they made all the difference in the world. to people one generation on. justice macgregor said of me that i was the first this and the first that, and technically speaking that is true but it was more a matter of fluke than anything else. there were women deans at premier law schools before me, there was a woman attorney general before me and a woman solicitor general. women had already cracked that ceiling, not as much as you
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would wish, but it had already happened and it happened because of people like justice o'connor and justice ginsburg. to graduate at this time, there were such remarkable stories. they graduated first in their class and basically nobody wanted to hire them and they had to make their careers up from scratch. they kind of had to figure out how to create these brilliant careers even when the institutions of the legal profession were saying, you're not ready for women. and in doing that, those two women made such an incredible difference. if you think about the four supreme court justices, it is justice o'connor and justice
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ginsburg, and 25 years on, it is me and justice sotomayor and that would not have been possible if it wasn't for them. >> i will accept that, but i will not accept that it was a fluke. [laughter] but let me ask you. you clerked for justice thurgood marshall, justice o'connor was on the court even if you didn't enjoy her aerobics class. [laughter] what did you learn about how they, in their role as justices, approached their work, what perspective did they bring? how did you see that they went around their work? justice kagan: justice o'connor, i have already spoken of what makes her so important and i cannot really add anything in terms of what i saw in the court because chambers function sort of like nine separate law offices and i was not privy to
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conversations with her about how she decided cases and so forth. one of the great honors of my life was that your clerking for justice marshall and to have that opportunity to sit with him and talk about cases and talk about anything else he wanted to talk about and often he did. [laughter] >> do you have any stories you can share with us? justice kagan: the stories about justice marshall were so legion i don't know where to start. he was, in my view, the greatest storyteller i have ever met. he was a raconteur. we would come in and talk about cases and those were serious conversations. i guess the thing i learned about justice marshall the
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lawyer was this, and i tried to apply it every day, that he had the knack of seeing straight to the heart of what most mattered in the case. a lot of our cases are very complicated and complex, you can ask a thousand zillion questions dealing with various facets of them, but often the thing you want to do when you decide a case, that maybe you want to do in an argument in a case, is ask the single question that goes to the heart of the matter. once you know the answer to that, everything else falls into place. and i thought justice marshall had that. i would call it, a real lawyers great lawyer skill of seeing to the heart of something. but of course, i think the reason we all felt privileged to clerk for justice marshall was not just because he was the supreme court justice, he had these great lawyerly skills that he brought to the bench, but because he had become this
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extraordinary lawyer, i think the greatest lawyer of the 20th century bar none. in part because of his skills and in part because of what he used them to do, being a great lawyer is doing a lot of justice. there is nobody who did more justice than thurgood marshall did in that period of time maybe -- and maybe ever. he talked a lot about his life and about his work for the legal defense fund. sitting there in his office and being regaled with these stories, many of which were extremely sad, tragic, horrible stories, and somehow you are both crying and laughing at the same time because of the way he told them. i will always look back to that year and think, boy i had the opportunity to hear from -- it's really quite extraordinary,
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great man that very few people did about his life, about the way he viewed the law and about the way he viewed the world. it was a real treat. >> i think he taught his law clerk one thing, how to be a raconteur. i don't know if they picked up the wit. you certainly picked that up. justice kagan: i don't hold a candle. i can assure you. [laughter] >> let me say a little bit more about being the sort of first woman, first african-american. they had those firsts. they are important, there was a 25 year gap between the third and the fourth were appointed. there is an awful lot of discussion going on and i'm looking at a lot of students here, where there is evidence that you can be the first, in some ways i was the first and then other things came more easily, but then there is a third, fourth, fifth then things get stuck.
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and when you are talking to people that haven't been to the very top, who haven't been solicitor general or the dean of the harvard law school, what advice do you give them to give them the same kind of inspiration that justice marshall and justice o'connor gave to you? justice kagan: i don't know that i have much advice about how to become solicitor general or how to become -- >> i was hoping there would be an inside tip. justice kagan: be in the right place at the right time is what i would say. whether i wanted to or not, i had to do a lot of advice giving to a lot of young lawyers and mostly what i told them was, to follow their own passions, to use law school and to use the early years of a legal career to find out what really mattered to them and what made for genuine meaning and fulfillment in their lives.
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it is different things for different people, and to try and say, i'm going down this channel because this is what all my friends are doing is the worst mistake you can make but instead, to really use those years to find a job that when you wake up in the morning you just cannot wait to get to work. because what you are doing has real meaning and what you are doing, you think, matters. because i think it's in jobs that really matter that people find their own greatest personal fulfillment. >> did you know where you are headed or did you sort of find your way there? justice kagan: i didn't at all know where i was headed.
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my career path was lots of twists and turns and zig zags, one moment i thought i was on the path to do one thing and then it turned out i was on a path to do something completely different. if you had asked me 18 months before i became a supreme court justice, i was in my sixth year at harvard law school, if you had said, what was the next thing? i would have said, i will spend a few more years here and i would go be a university president someplace. my view was that i was going out of law entirely and all of a sudden something happened and i got this opportunity of a lifetime to become solicitor general which really did come out of the blue, a little bit. all of a sudden, i was a person who would naturally be considered to be a justice and that was wildly unexpected. >> before you became solicitor general who is the lawyer for the united states before the
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united states supreme court, had you ever argued for the court? justice kagan: i hadn't and i will do you one better, i hadn't argued before any appellate court. [laughter] [laughter] so here is a little bit of a story. i had been contacted right -- by some people in the obama white house and they had asked me whether i was interested in a particular job and i won't say what the job is, but it was not solicitor general. and i said yes, i would be interested in that job. it was a very good job, not solicitor general. and it was a job where i thought, this is a job that kind of makes sense, that i have some of the experiences and skills to do quite well at this job. and then i was pretty far along the way through the vetting
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process, where everybody reads every word you've ever said and talked to everybody you've ever known since kindergarten and pretty far along that process, i suddenly got a call and it said, we have decided you are not going to get that job, we want to know if you want to be solicitor general. and i said, what? [laughter] and i really did say on the phone, i have never done the supreme court argument. i'm not the person you want or need and i'm not the right person to fill that role. and they said, we thought about this a lot and we are confident you can do this. so i had to think about it a little bit. >> uh-oh. justice kagan: i told him i would call them back in a day or two and it really was, i am not sure i am the right person for this. i have a healthy self regard,
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believe me. [laughter] but i just didn't know. you just said it. you had never done an argument in an appellate court. >> i was giving you a way out. [laughter] justice kagan: and then the self regard took over again and i went in the back and i said, yes! that's what i found myself doing. i couldn't have done it except that the solicitor general's office is such a remarkable place. this is the office -- can anybody hear anything i'm saying? this is the office that does all the appellate litigation for all of the united dates read so all -- for the united states so all , of the appellate courts , particularly i am the supreme court. and it is staffed with these fantastic appellate lawyers from administration to administration to administration. there are only two people that the president appoints to the
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solicitor general's office, all of the rest are people who are there regardless of party or administration. they are remarkable lawyers, incredibly generous people, and they basically taught me everything that i know. whatever that is. [laughter] >> do you remember your first argument? did you start off with sort of the intermediate appellate courts or did you start off the. justice kagan: i didn't actually have that opportunity. my first argument was a special session of the supreme court. they call it a special session just so i can do my first case, which was a reargument of citizens united. [groans] justice kagan: sounds as though you know it. [laughter] it was all about campaign finance regulation. it had been thought of as a small case when it had been argued by the deputy solicitor
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general. and then the court decided it actually wanted to reconsider some of the some of the precedence that the case was argued on. it happened in september when the term starts in october. the lawyers are instructed to brief the following questions, those questions eating whether to overturn very significant campaign finance decisions of court. you can imagine this was a little bit petrifying. >> not at all, not at all. [laughter] justice kagan: i thought, my gosh, this is such a big deal, such a big issue in the eyes of the world. i better not mess it up. the one thing i said to myself and i think was right, in the
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-- and i think it was right, in the end, probably your argument is not going to make a difference. [laughter] when the court does something like that, there is a pretty good sense on the courts are -- on the court's part that it knows what it wants to do, that it is giving everybody an opportunity to brief questions that they didn't have before, but there are probably five justices ready to overturn these cases and to issue this decision. so i hope i didn't lose the case. i don't think i did. it was a pretty petrifying experience. i will tell you one story from that argument. my heart is beating really hard, literally, there was one time in my life where i know what that expression means. i practically couldn't hear anything because of the pounding happening inside my own body.
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how am i going to do this? i got up to the podium and i had memorized, as people do, three or four or five sentences to start with. and at the end of the first sentence, which frankly, i hadn't really thought was the key sentence, it seems to me a fairly undisputed and i'm kind -- anodyne kind of sentence. at the end of the first sentence, justice scalia leaned over the the bench in this way i knew he had, leaned over and i had just said something, a short declarative sentence and he said, wait, wait! wait! except he said it more strongly than that. [laughter] he proceeded to tell me why this single sentence was wrong, but it was the absolute best thing that anybody could have done .
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because it just forced me to be in the game right away, and my own view is that he knew that, that he knew from the sound of my voice saying that single little bitat i was a shaky, and he was just going to put me in the game right away, and if some but he challenges you, you have to stand right back, and that is what happened, and it turned out fine. [applause] kagan: i told this story once before, maybe a couple of times before, and i remembered it in my head, with justice theia leaning forward in bench and saying, "no, no, no, no." that is just the way i remembered it, and one of the reporters said, it was not four
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noes. it was four winks. "wait,"you say everybody hears no. [laughter] there were some that were willing to overrule. we just completed a year of the court. the court runs from october 2 june. .here were only eight justices a little bit about what that experience was like, because there were opinions issued throughout the year. where there couple was a reading that maybe they had been held, but the year went on and on and on, and it is not that easy to nominate and confirm another justice to the be -- and so it seemed to
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i don't want to see more consensus, but you had to reach a decision with the eight justices. if anything, can you tell us about that? not so much about the particular cases that why that would be different. justice kagan: we went the better part of two terms with eight justices because justice scalia passed away in the middle of two terms, but before most of our cases had been decided were issued, and then most of this also with past year, eight until justice gorsuch got confirmed and set in the last month of the term. for the better part of two terms, we had to do it gently what you are saying, which was make decisions with eight people. courtss a reason why the
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do not have even numbers of members. it's because when you have an even number of members, every case can and in a tide. every casee not -- can end in a tie. then you are not doing the job you are hired to do. said, i think the two-year. period had it won a silver lining. nobody would do it forever, but there was something we learned during that two-year. pe whichrio is this. das you say, we did keep issuing decisions because all of us were committed to trying to issue decisions. we did not want to look as though we couldn't do our jobs. and that was right across the 4-4d, people said, every
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decision, where he threw up our hands, every decision is a failure on the part of this court. so we work very, very hard to reach consensus and to find ways to find ways to agree that might not have been very obvious. and sometimes they have led to silliness. toetimes the thing we found agree on was something that really nobody cared about. [laughter] but often, i thought the process was very good in terms of issues,ways to massage modify issues in such a way that all of a sudden we could see the prospect of a broader consensus than might have appeared at first glance. and i think that that was a good thing for us to learn. the chief justice hasn't said
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from the beginning -- has said from the beginning of his tenure that he cares a lot about achieving as wide a consensus in our decision-making as we can. and i think that even before these two terms, we do that much more often than people give us credit for. about half of our cases are decided unanimously. another significant set are decided with only one or two dissenting votes. but still i think we manage to find consensus in places during the last two years, that we might not have expected to find come out of necessity. and because of great leadership skills of the chief justice. and you know, i hope that we remember that you do we continue to sort of go the extra mile to
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see if we can find ways to build bridges across differences and to develop more consensus than you think might exist. [applause] justice kagan, i am going to with difficulty have to turn my back on you, because i'm going to ask the audience if there are questions and maybe while we are coming up with questions, i will ask you one other quick question, a very serious question -- we have talked about the independence judicially and i know that justice o'connor has become increasingly outspoken about threats she sees to our constitutional democracy. primarily, not because of
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attacks of decisions, but the kind of conversation of things made to suggest that the supreme court, unlike the other two branches, is somehow beholden to the popular will, the majority of the people. do you have observations from sitting on the court, are you aware of the increasing concern? justice kagan: i think that we tune a lot out, because -- ms. marshall: you have to. justice kagan: we have to. you know this. and i think it is really important not to say this in a way that suggests the judiciary should not be criticized. ms. marshall: absolutely not. justice kagan: because the judiciary is doing important things. any given decision, some people may support and other people may oppose, and both sides have a right to say their piece. and so i think it is quite
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important to talk about this, do not suggest that we are immune from criticism and everything we do is perfect. but at the same time i think certainly other actors in the system of government, federal, state, presidents, governors, members of legislatures, they too have been criticized but you hope that they respect the iniciary's important role the system. you said at the very beginning of our conversation, we are not mocracy, we are a constitutional democracy, that means the judiciary has an important role to play in the branches. of other and it can make the judiciary an unpopular set of people when
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they say to a governor or president or congress coming cannot do that because it is not within your constitutional powers, or because it infringes on an individual's right. and again, those decisions also can be criticized, but you hope that -- and i think it has been one of the great glories of this american constitutional francis the that the great majority of time, however unhappy other governmental actors wore with the court decision, they understood that was the court's rule and they respected the judgments. and that is what you hope happens in the future as well. ms. marshall: and if i can add to that, the fact other branches of government and our people accept the decisions of the united states up in court is --
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supreme court is a remarkable achievement. it was not going that way and it probably will not always be that way. in many countries throughout the world have tried to copy this model, but it is not so obvious when the court rules it will automatically be obeyed. that is from my point of view one of the great treasures. now. justice kagan: here, here. ms. marshall: the first question is going to go to one of our young scholars. other people put up your hands if you would like to ask justice kagan a question, because we have mics and somebody will find you. yes? >> as a justice of the supreme court, you are responsible for upholding a constitution that was written over 230 years ago. how do you honor or uphold the constitution while acknowledging societal change? and how might that responsibility come into
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conflict with your personal beliefs? justice kagan: that is a big, deep question. [laughter] [applause] is after all she one of five scholars that came across the country to be here, so more power to you. justice kagan: can we go to one of the adults now? [laughter] ms. marshall: let me tell you, they are so shocked nobody is putting their hand up. [laughter] justice kagan: um. i think one of the most support and things for any judge, whether it is a supreme court justice, a trial judge, anybody, is to understand that your personal beliefs are not what matters. the law matters. now i am going to talk about something that is hard to figure out, what exactly the law is demanding, but it is the law that matters. your policy believes, personal beliefs, you have to put those aside, you have to put the many
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box, because when you are interpreting a statute, it may not be the statute you would have written, too bad. when you are interpreting the constitution, it may not be the constitution you may have written, too bad. it is the constitution that we have and your oath of office and your responsibility to the american people is to do your best to interpret and apply the law that we have. the statutes that congress passes, the constitution that was ratified more than 200 years ago. your personal beliefs can be in that box and it is a hard job on which people will disagree as to how the constitution ought to be interpreted, what it means with respect to any given situation. job, part say, that of the reason that job is hard
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is because of the passage of time you are talking about. but part of the reason the job is hard is because the chapters of the constitution -- the drafters of the constitution actually knew that the passage of time would happen and they want to the constitution to stick around for a long time. because they knew that they wrote it not to be very specific. there are all these phrases in the constitution which are not self defining, which you know, they do not tell you exactly what that means for any particular case. so if i say to you, i will use an example not from 1789, but from 1858 when the 14th amendment was passed, the source of an enormous body of current constitutional law -- if i say to you, the constitution says everybody is entitled to due process of law or to equal protection of the laws, now you have to tell me what that means.
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and the dictionary does not just tell you that. so you have to develop ways of ensureg what it means to that every citizen in our country has equal protection of the law. now different justices have different views about how to do that and am not going to use this to push my own view. justices say that you really do have to look back and see what ever you can see about that moment when that amendment was ratified. i do not agree with that. i think the constitutional interpretation is more of an organic process, the way that you understand and apply those provisions is by looking not only to what they meant at that moment in time, but throughout the stream of american history up through our own moment. and particularly looking at what
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the courts has said about those provisions, year after year after year. i think that is what produces the decisions that are most faithful to the constitution and that fits best in our current world. that is how i do constitutional interpretation. others do it differently. but we are all struggling with the same problem, which is everything the one of us on the court, i have absolutely no doubt are putting our personal views into that box as far as we possibly can. we do have different views about interpretation, about uh -- especially as to the constitution. in some ways with the statutes as well. and those differences account for divisions on the courts as to various important issues. all oft that is what --
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us, every single one of us is applying our than own personal preferences in the way that they think makes best sense. ms. marshall: any other questions? [applause] ms. marshall: yes? thank you. first i am a retired high school teacher and i know i am not smarter than i high school student and i would like to congratulate them on their achievement, because it is really wonderful. [applause] ms. marshall: thank you. justice kagan: thank you for saying that. i should have said that. [laughter] >> thank you for your presentation justice kagan and he made a comment about each justice's chamber is like a separate law office. so my question is, i was curious
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as to the process as to how much time you spend working on your own and how much time you spend debating with each other and discussing before you come to your decisions. justice kagan: most of your time is spent on your own. if i could count the hours i spend sitting in my office just staring at my computer screen, or talking with my own clerks, it vastly outnumbers the hours i spend talking with other justices. but of course, the time spent talking with other justices is where the decisions get made. so then you just spend a lot of time basically implementing the decisions by writing the opinions that you are assigned and so forth. but the way that we decide cases, maybe i should say a little bit about that, is we -- when we hear a couple of cases on, we hear a couple of cases on
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monday and then a couple of days later we go into conference on those cases. so we have had some time to think about the arguments. we have also had some time, if we want to, we could reach out colleagueswo of your and see what they are thinking. but for the most part that does not happen all that much. really, the first time we get together and talk about the case is at a conference a couple of days later. and that is the thing i think, if you would ask me, what are you, what surprised you about the court? i would say the thing that you never know as an outsider looking in, however close you are to the process, you just do not know what that conference sounds like. so now that i have been at that conference, i can tell you that you would think it sounds pretty good actually, i think. the justices come in, everybody
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is prepared, everybody is thoughtful, everybody listens to each other. the way we work it is the chief justice always starts, and he will say, remember this case, it was about x, y, z and the c, and then he, will give his own views and then everybody realizes they are preliminary views. he will say, this is what i think, and to sell i would vote to affirm or reverse. that it goes around the table and there is a role that -- rule that nobody can speak twice before everybody speaks once. and it goes into nordic from the chief justice to the senior associate justice, and then around the table in sin nor the -- in senority, and until a couple of months ago i was always the person that spoke last.
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and i can tell you that as the person who speaks last, you definitely want the rule that nobody can speak twice before everybody speaks once. [laughter] it is a great but place to be and i have spent the last month regretting that i do not speak last anymore, because you get to anchor the conversation a little bit and hear what everybody has to say, gorsuchnk neil appreciates that position. and then more general conversation breaks out and people respond to each other. not infrequently people will say, i was thinking about it this way but some other justice said something that really has me rethinking the case and people's minds change or people find alternatives that they did not know existed, by listening to other people, so there is
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pretty vigorous and i think, you know, really valuable debate and discussion at that conference. but then eventually we have a vote. justice in the majority, that would be the chief justice if he is in the majority, and whoever the senior justice is if he is not, assigns the opinion and usually the senior justice in the dissent assigns a dissent, although it is a little bit less strictly enforced. back to you do, you go your office and you do spend a lot of time staring at your computer and trying to implement those decisions as best you can. ms. marshall: i have a question. one more question.
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you might be interested to know, the supreme court of massachusetts does it the same way, except the chief justice speaks less, which has all the advantages you said you had for the last couple years. so when we get our first woman chief justice of the united states i am hoping she will try a different model, because she might remember speaking less. [laughter] justice kagan: i think last is definitely better. but i think, i think the exception i would make is it is probably better to speak first. because if you speak first you get to set the tone. [laughter] ms. marshall: weight, weight -- wait, wait. question over here. >> i wanted to ask what advice you have for young girls who have ambitions similar to your
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own, but face derailment along their path? for example, limited economics or lack of parental support, or family obligations that seem insurmountable -- how do you stick to your dream? justice kagan: yeah. so, there are lots of girls and young women who are not nearly as lucky as i have been. and to stick to your dream when that is the case, they are doing something a lot harder than i have ever had to do. but you know, i think success is mostly based on great and determination-- grit and determination for girls and young women who do not have great advantages. and the people who make it notwithstanding that, and who succeed despite all of the really terrible things that life
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has thrown at them are the girls and young women that just have a s thatf stick to it-nes nothing will ever beat them, i think. you know, there are some people like that who have come from backgrounds like that on the current court. admiringunbelievably of what they have accomplished. and the two people who are like that, who really just had so much stuff thrown at them, are justice thomas and justice sotomayor, in their ability to rise above it all, i think both of them found people in their lives but i think it is mostly because they have the kind of steely determination and grit that says, i will not let
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life defeat me. it is an amazing thing to see. [applause] ms. marshall: what a great thing. thank you so much justice kagan. [applause] announcer: monday night on "the communicators," and interview with a telecom reporter. rule, howzing the fcc do you look at the market? >> if you talk to the average consumer, how are they envisioning media, how they are digesting content, it is not
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just in a small segment of the three old major network channels. ,ou have got a much wider swath and they are digesting so much more from different sources, so my definition of market is some.ly broader than i think the past commission failed in this respect, when they viewed things like impeding and fm radio competing. everyone is fighting over the same eyeballs, the same attention, the same advertising dollars, and doing this in a thoughtful way. announcer: and watch "the communicators." c-span 2. new talks about the free trade agreeme

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