tv Justice Kagan Remarks at Georgetown University Law Center CSPAN July 18, 2019 4:03pm-5:06pm EDT
[applause] >> good afternoon. my name is david, i'm the president of washington council of lawyers and language access director at ayuda aen in profit that offers legal, social and other services to immigrants in the d.c. area. i'm excited to welcome you to today's conversation with justice elena kagan and dean william tre' nor. i would like to thank georgetown university law center for hosting us today and making this a success. before i offer a brief introduction of our speakers today, i'd like to take a minute to talk about the washington council of lawyers. we are a voluntary bar association committed to ensuring that our legal system treats everyone fairly. regardless of money, position,
or power. our current strategic plan focuses on training, developing leaders, advocacy, and building community. being a member of the washington down soifl lawyers gets you into great events like this one and make you part of a community of lawyers fwathered together around a common cause of ensuring access to justice. we are passionate about supporting the next generation of lawyers and many of our programs, like our summer forum, are geared toward law students. if you're not already a member, we encourage you to join. you can sign up online or you could join on your way out after the program. a few housekeeping notes. for today's event, you can follow us on twitter at washingtonlawyers, we're using #kagan2019. photographs only permitted in the first two minute os they have conversation.
we ask you to silence the cell phones and refrain from using them in the program unless you're following along on twitter. there be a reception immediately following the event at the top of the stairs. today i'm honored to introduce our keynote speaker, united states supreme court justice elena kagan who has dedicated her career to legal education, public service, and the protection of fundamental values common to all americans. justice kagan received her bachelor of arts from princeton university, her master of philosophy from the university of oxford, and her jures doctorate from -- her juris doctorate from harvard law school. after law school she clerked for a judge in the d.c. circuit and in the 1987 term for justice thurgood marshall of the u.s. supreme court. after briefly practicing law at a washington, d.c., law firm, she became a law professor, first at the university of
chicago law school and later at harvard law school. she justice kagan also served four years in the clinton administration as associate council to the president and then deputy assistant to the president for domestic policy. starting in 2003, she served for six years as dean of harvard law school. in 2009, president obama nominated her as a solicitor general of the united states. and she became the first female to hold that role. a year later, the president nominated her as an associate justice of the supreme court and she took her seat in august of 2010. today's conversation with justice kagan will be moderated by the dean and executive vice president of georgetown university law center, william m. trainor. dean trainor received a bachelor of arts from yale a doctorate of law in history from harvard.
he clericed for the honorable james l. folks for the u.s. court of appeals before serving in a variety of positions in state and federal government. in 1991, dean trainor began teaching at fordham law school where he would later serve for eight years as dean. dean trainor joined georgetown university law center in 2010 and has led the school through impressive changes, including a great expansion in the number of experiential offerings across the clinical, externship, pract couple and simulation programs. given dean trainor's long-term support of public interest advocacy by students an lawyers, washington council of lawyers is appreciative of his service as a member of our honorary board. now i turn the stage over to dean trainor and justice kagan to start our discussion. [applause] >> welcome, justice kagan.
justice kagan: great to be here. thank you to all the members of the washington down soifl lawyers for all of the great work that they do, promoting pro bono and public interest and public service. it's an enormously important role in the legal profession so i thank you for everything you o and i'm glad to be here. mr. trainor: we're delighted to you're here, so pleased be partnering with the washington down soifl lawyer, and david, we're so proud of you. one thing as a former new yorker, you graduated from hutter high school. pinston, oxford, harvard, dean of harvard law school, supreme court, all fine.
but it's really hard to get into hutter high school. so i think everything else was predictable from that moment. justice kagan: back then it was easier to get into. it was a public high school, one of these test high schools which is what you're referring to when you say it's hard to get in. it was also all girls until several years after i arrived there. when i was in ninth grade they started taking boys in the seventh grade which was not realy in keeping with what all the ninth graders thought should happen. so there were only half as many applicants, you know. mr. treanor: clearly the emissions -- the admissions people knew what they were doing. it's a delight to have you here. i think as we start this,
everybody very much front of mind is justice stevens' passing. i know this is a week of mourning at the court. justice stevens is quoted as having said, when he spoke in 2016 at the university of miami, thanks to elena, i have never regretted my decision to retire. justice kagan: that's lovely. mr. treanor: i'd like to start by talking a little bit about justice stevens. justice kagan: it's a week of mourning. but if it's ever appropriate to say something like, it's also a celebration of a life, i think it would be that too. my gosh, what a life. 99 years old. sharp as a tack. until the day he died. went very peacefully. so we should all have a life like that.
he was an extraordinary man,en extraordinary justice. to take the extraordinary man part of it first, i don't think that there's a person who has ever met him, you know, every clerk i've ever spoken to, all his colleagues, lawyers who appeared before the court, i mean, everybody uses the same words to describe him, which is kind and humble and respectable of -- respectful of everybody, treated everybody with extraordinary dignity. had so much personal class. nd so much kindness. every clerk he had i think would tell you he was the best boss they ever had. and then a truly extraordinary justice. of course he served a very long time on the court. 5 years. you know, retired when he was 90
years old. and again still just totally tively contributing to meeting. he was a brilliant lawyer in the kind of technical and draft aspect of the job. absolutely brilliant. and at the same time, he had a real passion for justice. real, you know, an insistence that the legal system operate fairly. for those going through it. and i think the marriage of those two things, the sort of brilliant lawyerly capacity and he insistence that our legal institutions be fair, is what really marked him as a justice. he was fiercely independent.
and in different parts of his career, which stretched every a lot of years, he played different roles on the court. some being more the kind of solo concurrence and some being more the leader of a particular set of justices. but throughout, i think, he was marked by this really strong sense of, i'm going to do what i think is right, kind of integrity and his own -- in his own decision making and independence in his own decision making. at the same time, he was, you knee, the mod ofle collegiality. -- the model of collegiality. and i think he cared about the court as an institution. so at one and the same time he was like, i have to do what i think is right. but i also understand that the court has to operate as an institution and i'm a part of it. and i think he married those
things in a pretty unique way. and you know, he produced this, just, incredibly important body of work. majorities and dissent. 35 years, you can write a lot of both. you know, it's a body of work that i think, you know, is not surpassed, certainly, in modern times. mr. treanor: it's interesting. i recently went back and looked at his no, ma'am nation and the press accounts. one of the big concerns at the time was his health. [laughter] justice kagan: they didn't have to worry. mr. treanor: he had just had a heart attack. justice kagan: what's so striking, actually, i think seemed eternal. he was 95 years old, swimming in the ocean every day, you know.
mr. treanor: it's amazing. the other -- i think the other longest term or oldest justice was holmes and justice holmes, his opinions really declined toward the end in terms of quality. stevens' really seemed remarkable throughout. justice kagan: yeah. mr. treanor: what do you think his greatest legacy -- is there an area he shaped? a philosophy that others have followed? justice kagan: i think it stretched across such a wide range of subject matter areas. i guess i would have a hard time picking just one. am i missing something obvious? mr. treanor: i don't think. so i mean, i think, one thing that is kind of the standard story about justice stevens is his role on the court changed over time. when he started the court he was really, you know, a loner. kind of writing his own
opinions. justice kagan: when i lerked at the court, in the 1987 term, that's still what he was doing. he would write a lot of solo defense, solo concurrence. some of which you thought, he's got it. notwithstanding that maybe the case wasn't argue that -- argued that way and that wasn't what all the other justices were thinking about, they weren't thinking in that frame. but you would sometimes read it and you would say it's really too bad that they're not. that's really the way to welcome at this case even though everybody else is kind of over here doing something else. occasionally you'd say, well, hat seems a little quirky. but there was always kind of, just the way i looked at the case. and that did -- i think that he was always somewhat like that. like, you know, i'm just -- that's my job, is to tell you
how i see a case. regardless of whether everybody else sees it the same way. but he did become, in his later years, and really in his last, i don't know how long was it? 25% of years, the last his tenure, he became sort of the senior justice often in defense. and that meant he wrote a lot of those defense, or assigned them, but wrote a lot of them. it meant some of the positions that he staked out in those last years really were ones where, the court has gotten this long, here's the way you should think about it for the future. mr. treanor: let me talk a little bit about two things. that i reflect on with justice stevens. one is, the role of dissent. which i would like to talk
about. before we get to that, you know, kind of the normal arc for justice stevens is people talk about him as a very individualistic, brilliant, but writing his own opinions at the start and then in the last decade, becoming the liberal leader of the court. the other is that he's somebody he changed his mind and was candid about that. that he -- with affirmative action or the death penalty. he shifted his position over time. which brings us to the question decisis. justice kagan: i was justice stevens' successor and he was
endless will i kind to me in terms of offering advice, always in a kind of grateful way, not imposing advice but being there if i ever had a questioning -- had a question, offering whatever wisdom he could. one of the thing he is said that really stuck with me, and this was again, you know, hearing this from a man who had just served 35 years on the court, was he said he tried to think every term about, like, all the things he could learn the next term. and he -- most people, they've been doing a job 35 years, they kind of think they got it down, you know. or at least the time for apprenticeship an learning is over. i do think he was not like that. it was one of the -- the one real aspect of his greatness which was that he was constantly thinking and rethinking and thinking about what he didn't know yet. and thinking about what
opportunities there were for continued learning. and you know, it's a great lesson for everybody. in all aspects of life. but i think it's especially so, maybe, for judges. because everybody treats you as though you're a very special and important person. everybody tells you that everything you do is just, you know, there are not all that many people who come up to you and tell you what you've gotten wrong. and it's easy to kind of convince yourself that you have reached a point where you know everything, i think. he was the absolute antithesis of that. mr. treanor: when i was at fordham, as the dean, there was a symposium of justice stephens' former clerks in act dreama, the
talk the justice gave was called learning on the job. justice kagan: i didn't know that but yeah. mr. treanor: what he did was talked about, the focus was really substantive due process. and he had a certain case on it that was an oxy moron. when he became a justice. how he changed his mind over time. and that that's what justices should do. they should learn on the job. so it really resonates with your experience with him. justice kagan: and with your original question, about chaining your mind. mr. treanor: do you change your mind? justice kagan: i haven't been there 35 years yet but i've had -- and i wouldn't tell you right now, actually. [laughter] there were these opinions i wrote in my first two or three years that really -- they were just wrong. [laughter]
i don't think i'd tell you. i don't think i'd tell the world of litigants out there right now. but i do think often about that piece of advice and about trying to make sure that you keep an open mind and that you don't think that you've settled verything. mr. treanor: moving from that to stare decisis, the court changed its mind. you wrote about the importance f stare decisis. we were speaking before before, i think in the last two terms there have been six cases, or roughly six, in which parties have sought to have a precedent overturned. and in four cases the court overturned it. justice kagan: six cases where the question presented as, overturn this case. mr. treanor: and four in which
the court overturned precedent. in all six you were not on the overturn precedent. justice kagan: yeah. mr. treanor: in the case most recently at the end of the term, you talked about the importance of stare decisis. justice kagan: i've said this before. one of the cases, i'm not sure if it was on your list of six, maybe it was a few years earlier, was a case in which i wound up writing a majority opinion, not a particularly hot button case, it was a patent doctrine which some people thought was a sort of silly patent doctrine that should never have come out the way it did, but had been around for 60 years, something like that. and the question was, on that one i wrote the majority. it was a majority -- the majority that justice scalia assigned to me. he was the senior justice in the majority at that time. and i'll -- i'll give away not
much of a secret. he said, i think you should take this case, elena, because it will force you to think about what you think this doctrine is really all about. this doctrine of stare decisis. it was a great opportunity he gave me to think about and write about why we have this doctrine, what it was for, when we should use it, when we should depart from it. and of course sometimes you do depart from it. it's not -- it's not an inexorable rule. even though i'm 0-6 apparently in the last two years and i think if you go back further than that, you'll find that my track record is not all that you know it's not like i wouldn't overturn a case, sometime $real reasons for it. but i do believe that the heavy presumption is that we shouldn't
and there have to be reasons eyond just ordinary wrongness. and the court as a whole lists the factors it thinks about when it thinks about what kinds of things justify overruling a case. maybe one of them could be called like super wrongness. wrongness where the case just, you know, just is -- is no longer in line with anything that the society thinks about how a legal system should operate or indeed, how other institutions should operate. ore often, it's things like, well, the -- the particular case has become a real outlier. that the legal rules and doctrines have changed around it. leaving it a kind of weirdness
in the law. sometimes it's that nonlegal things change. so that the precedent operates in ways that nobody would have expected and that nobody really thought about. you have to have sort of some -- something beyond just, oh, it was wrong. learned like no, we something since then about -- that makes it incongress rouse or that makes it -- incon incongrouos,kes -- or that makes it morally repugnant. that for me is a pretty high bar. and in many cases, i think they're not met. the considerate has thought about it in recent years. and why should it be a high bar?
you know, for a few reasons, i think. people rely on stable legal rules. on predictable legal rules. and even when people don't structure their decision making to accord with those rules, i think in a broader sense, society relies on the idea that laws -- law is stable and law is predictable and the law won't change just because particular members of the court are different or change. i think maybe the worst thing people could think about our legal system is that, you know, just like, one person retires or dies or another person gets on the court and everything that's up for grabs because it's all just what that particular person, you know, what his or her preference is or
predilections are. you can never count on anything. you can never understand law as a stable continuing presence in people's lives and in society's lives, in society's life. i think also the doctrine of precedent is one of humility, right? which -- so this is justice stevens all over. one of justice stevens' personal characteristics, which everybody so admired, is this humility and modesty. that means not thinking that, oh, here i am. i just look at this case differently from the way many, many judges have looked at it in the past and my opinion is better than theirs and so i'm just going to reverse what they say. it's a sense of, you know what, before -- we had a case this year where people asked us to like 40 something that
different justices have looked at and said this is the way the rule should be. there's something maybe a little immodest about say, not with standing the 40 people have done it this way, i have a better idea of how to do it. so again, it's not that you should never be able to do that, sometimes of course you should, but it should be a high bar. mr. treanor: part of it is, if i'm just paraphrasing what i think i'm hearing, part of the rule of law and part of court being understood as apolitical. justice kagan: much more succinctly than i put it. so -- n you dissent, somebody wrotes, i was just delighted that people were paying attention to a case like this. you wrote a terrific dissent.
part of it was just incredibly rigorous analysis of, you know, very difficult doctrine. and then part of it was a discussion of stare decisis and its significance. and you -- during the course of your decade on the court, you've written -- a series of extraordinarily powerful dissents. what's your -- first of all, what's your audience? justice kagan: thank you. mr. treanor: a round of applause for the justice. [applause] mr. treanor: when you write in dissent, what's your audience? who are you writing for? justice kagan: it varies. you write different kinds of dissents. sometimes you write a dissent because you think the court has gotten it wrong and the party december serve to know that the case is not really a 9-0 case, it's a lot closer than that. in fact there are people who were persuaded by the other side. and you know, this is the way you saw the case differently and
it might there's -- not be the most important case in the world but it's important enough to say, look, i saw the case differently. here's why i saw the case differently. but at the same time you know that once you say that, it's over. it's done with. you know, you're not going to be pounding the table the next case that comes along and saying, oh, you know, i'm sticking with my dissent. i just refuse to accept the particular majority opinion. i mean, you know, you have a different view, you said the view, now it's like, you're back on the team again. a lot of dissents are just like that. right? it's not the first in a continuing line of dissents. or it's not, you know, a bat that will you keep on repeating over and over. it's just, yeah, i saw the case differently, here's the way i
saw it. ok. there's other cases that are different. i'm not going to say which one this falls into. i wrote a dissent which is very different this year. i wrote a dissent in the gerrymandering case. which is, you know, i didn't really pull my punches about the importance that i thought that that decision had to our political system and to the way we govern ourselves. and there's no part of me that's ever going to become accepting the decision made essentially that the courts shouldn't get involved in gerrymandering no matter how bad it is and no matter how disruptive of our political system it is. which is the decision that the court reached. and so there you really are, you know, you're not just -- you're not writing the dissent because
you saw the thing differently and you think everybody should know that there were two sides to this issue. you're writing the dissent because you want to convince the future. and you want -- i guess you want to convince the present too. you know, for all those people -- there who in some way can can carry on the efforts against this kind of undermining of democracy, you know, go for it. because you're right. nd for the future, you know, maybe the court will change its mind on this one. maybe things will happen that will convince it to change its mind. maybe the world will look different enough in however many years that this will be an appropriate opportunity.
maybe it won't. i'm not -- we can all look into crystal balls and maybe the majority will be right about the effects of this going forward. you know. i don't think so. and if i'm right, there'll be an opportunity to say, well, what's happened in these intervening years? does that make a difference? but look, you know, that one was , their defense is like, i saw the case differently. now we start all over again. ,nd there are dissents that are this is amis -- abysmally wrong. i mean, there were difficult ssues in the case. you can understand why the majority reached the decision it did. i'm 100% certain in every bone
of my body that the majority was acting in complete good faith as to why it reached the decision that it did. but i do think they got it wrong and that was one which was a kind of, you know, i want everybody to be thinking about this. going forward. mr. treanor: there was a very, very powerful dissent. in writing something like that, there were so many memorable points, within a case like that, do you do the -- now i'm shifting from the theory to the legal writing question. do you kind of outline the points that you want to make and then turn it over to your clerks? how does it get constructed? justice kagan: i guess i write all my opinions the same way, whether they're majorities or dissents and whether they are more important or less important. i seem to be incapable of not following a single procedure. what i do is, i ask my clerks to
give me a first draft. i use that first draft as mostly a spring board for my own thoughts. i see how one person wanted to do it. but then i open up a new document on my computer. i sort of put the new draft into different screen and i sometimes drag over quotes or citations or things like that. but i start all over again. you know, the draft is helpful for me because it helps me sort of get my own ideas in order. but i find that the only way i can know that what i'm, you know, the only way i can figure out a case whether i'm writing it from the majority or the dissent, is really to write my way through it. and so i'll just write my way through it. you know, in the dissent, you're obviously using as a foil the majority opinion. the majority is in some sense
harder because you don't have that. dissent sometimes is easier just to deconstruct something than when it's the majority, it's like you have the responsibility to sort of solve every problem. sometimes -- you don't really have that responsibility, to say why they're long. -- wrong. in a goody sent you give some sense of the alternative vision of the universe but you don't have to quite fill in all the details as much as you do in the majority. so there's something that is a little bit easier and sort of a little bit more fun about a dissent because, except for the fact that you're really distressed that you lost, but it is kind of fun to sort of take shots at -- [laughter] justice kagan: at what you think is maybe not optimal reasoning. and so anyway, then i got to the end. then i use my clerks as editors.
and we do a few rounds. i give to it one clerk, then to the other clerk, then i give it to two other clerks. so we do a few rounds of editing and then i release it to the world. mr. treanor: do you have a favorite dissent? justice kagan: i don't know. favorite in what way? because it is, it's like -- some of them, i hated that dissent because i really hated so much to lose that case. as opposed to some dissents where it's like, eh, well, i lost, who cares. mr. treanor: so on your writing style, for example, going back to the nic case. one thing i think is distinctive about your voice is that you both have incredibly careful, rigorous analysis.
so again, in nic you respond very carefully. justice kagan: this is why i accept these invitations. what i said about people don't often tell you, i have rarely had a conversation with a person sitting in your chair said, you know, i just read that dissent you wrote and i think you missed the following five important points. wasn't very good. it was badly written. nobody has ever done that mr. treanor: if they did that, would you accept a return invitation? so it's a combination of both kind of the response, very careful, but the also, very powerful quotes. at have kind of almost a colloquial style. it's striking to me. i don't think there's anybody who has got a voice like yours on the court. is there anybody, when you --
justice kagan: i mean in some ways, each of us has his or her own distinctive voice. if you gave me 10 opinions and said pick the author, i suspect i'd be awfully good at picking the author of all 10. i think we each have our own individual voice. but what i try to do, you know, obviously, i try to be as analytically good as i can be. i think good lawyering is super important. i think good rhetoric does not -- good rhetoric without good analysis is -- doesn't make up for it. so you know, first helps to be on the right side. you know, i pay a lot of attention to what are the best legal arguments here? how can we -- how cab we sharpen those arguments?
how can -- you know, sort of all the lawyerly kind of things that i started by say that justice stevens was such a wizard at. so i try. but i do -- i also want people to understand it. so i spend a lot of time, sometimes law is complicated and lawn can be arcane. and some of these correct arguments can be hard to understand. and so you have to spend just as much time trying to figure out how do you communicate these points to people so that they'll understand them and not just lawyers. and not just specialized lawyers. but ordinary people. for sure in a case like the gerrymandering case, i don't want just lawyers to understand what i'm talking about. i want others to understand what i'm talking about.
how do you communicate these points in a way that people will understand and in a way that people will -- it will sort of stick with people. it's not just like, i understand it. i get why she thinks this is so important and it's going to stick with me. and the way i think about that, honestly. i think you'll appreciate this is, i think about it in the way i used to think about how to teach a class. you would come into your office before class and say it's realy complicated material and i'm going to be talking about it to and with a bunch of people who are smart and are engaged and want to understand what you're talking about but they don't know much. and how are we going -- how am i oing to convey this really complicated stuff to them? i think about, when i sit dun and write these opinions, whether they're majorities or
dissents, i try to ask myself just that question. the dissents can be much more personal. i try to maintain a certain level of formality in my writing when i write for the court as a whole. still, less formal than some of my colleagues. but i don't, like, let it all hang out. i try not to do things that i think my colleagues wouldn't be comfortable with. because it's their opinion as much as my opinion when you're writing for the court. when you're writing as a dissent, you can be much freer in the your style and points you make both. so that's another reason why, except for the fact that you've just lost, writing a dissent can often be a lot more fun than writing a majority. mr. treanor: is there a former
justice no longer on the court whose writing style you admire in particular? or is this all -- justice kagan: everybody has to and -- it's not as though i try to mimic any one person. i think probably the thing that's -- more people on the court seem to agrow on in terms of supreme court history than anything else is that justice jackson was a great writer. you ask everybody on the court who their favorite old justices were, pretty much everybody puts justice jackson on their list. somebody said to me recently that justice jackson served on the court for barely longer than i have by now. and it made me feel so deflated. like really? re-- he wrote all of that in just as long as i've been on the court? he was an extraordinary writer.
justice scalia was an extraordinary writer, i think. again, i don't think i write like him. just as i don't write like justice jackson. and there are things, you know, times when i thought that justice scalia went too far, just as there are times when other em-- when other people think i go too far. but he was a writer who i constantly learned from. who are your favorite writers? mr. treanor: jackson. justice kagan: it's not even -- yeah. mr. treanor: holmes. holmes is not a great justice in terms of law. [laughter] but in terms of after rhythms, nobody better. -- of aphorisms, nobody and won
well. mr. treanor: justice marshall, phrases for the ages. those are the ones i'd think about it. justice kagan: you couldn't try to imitate any of these people. they were too long ago, write in ways that are not very 2019, you know. mr. treanor: that's true. you have to come up with your own voice. and times change. but i think you couldn't write like justice jackson. one couldn't write today like justice jackson. i think it would be inauthentic. if you said that. justice kagan: people would be like, what is she doing? [laughter] who talks like that anymore, you know? mr. treanor: one other topic, and then we'll open it up for questions in a couple of minutes. talking about leadership. there was a wonderful course on women in leadership. you've been both a leader of a
law school and a leader on the court. what is your model of leadership? is it different being the dean of a law school and being on the court? justice kagan: yes. because i don't really lead anything anymore. when you're a dean of a law school, you know, i know, you are the leader of a law school. it's not like you can do anything you want but you're the leader of the law school. the chief justice is very clear that the associate justices are not leaders of the supreme court. and you know, we are nine sort of equal participants and to the extent that we're unequal, the chief justice is the unequal one. so i don't think the same kinds of thins i thought about all the -- things i thought about all the time, with one exception, but i thought all the time, you're a teen of a law school, your whole job is to figure out how to lead an institution and to learn how to do that. most of the skills that i picked
up doing that, i think are pretty much irrelevant. when it comes to, you know, being one of nine people around a table voting and trying to persuade other people about how case should come out. notwithstanding how much deans say that they listen or that they confer with their faculty, in the end, it's still sort of your job to run the thing. and that's not my job anymore. but i will say that one of the things you learn as a dean is, you know, effective leadership is awfully hard without good listening. listening is not alone enough to make somebody into a great leader of a law school or any kind of organization. -- and that 's
kind of listening ability is, i think, also critical to what i do now. because as we sit there and talk about these cases an we try to persuade each other, i think effective persuasion only happens when you understand where another person is coming from and what might speak to his or her concerns. so i get -- i guess if there's anything that is important in both sorts of roles and that i think, ok, to the extent that i learned something as a dean, it was to be a good listener. that's really important on the court too. mr. treanor: when you were clerking, were there leaders on the court you learned from? as a model?
justice marshall, justice brennan, did you learn anything from them in terms of, in your role now, in terms of building majorities? justice kagan: they were not building all that many majorities the year i was there. and i think, you know, justice marshall was never really in a position where he would play that role. justice brennan for some number of years on the court was in that position. and of course many people think of justice brennan, the most important thing for a justice was to be able to count to five. and some people think he had a kind ofmy rack louse ability to create -- a kind of miraculous ability to create those alliances of five. there are other people who think well, it helps when you have seven to start with. [laughter] you know. the years in which he was playing that role. were years in which he had a
coalition, al not if you will, but -- but you know, honestly, i think the way the institution works, at least now, whether it worked this way in justice brennan's time i don't really know, but the way the institution works now is hat these are nine exceptionally smart, diligent people, all of whom have their own ideas about how law should be done. all of them operating in complete good faith, but not necessarily on the same track. and it's hard to convince people. and you can only do it on the merits. and you can only do it by listening hard to why they think something different from what
you would like them to think. and you know, that's what i try to do. that's what others try to do is to just listen and to be in a position to persuade. mr. treanor: if people want to ask questions, we have two microphones, please stand by the microphone. start there and there. wow. people are stepping down. is it different for the court now since other than you they're all former appellate judges? does that make a difference? justice kagan: i don't know. i don't have anything to compare it to. i know there are some people who think that the court, you go back to some courts, the brown v. board court, had no appellate judges, right? mostly politicians. and some people think maybe some -- is ld experience is
lacking on a court like ours where almost everybody has been an appellate judge and i come from a world that was not very different from that, the world of law schools, you know, but there aren't any politicians, any -- anybody who just brings a completely different set of experiences to bear. i don't know, you know, i guess i'm not altogether a fan of that model. i think that most of what we do is pretty serious lawyers' work. i think most people who haven't done pretty serious lawyering in their lives would find most of it very interesting. i think, you -- ow, so -- i guess -- i don't mind that -- i don't really see the alternative as a better one. mr. treanor: all right. so we have time for a few
questions. why don't we start to the left and say your name and then ask a question. >> thank you to ms. key began and -- ms. kagan and dean treanor for coming. university of texas. at some point you mentioned that justice scalia enflunesed your interpretation process, i may be mistaken in this, but if you could discuss that more, how does it man fe fest in how you look at statute. justice kagan: i don't know if he influenced it on the court. i think, justice scalia had just become a justice when i went to law school. and for sure, his ideas about statutory interpretation were ideas that i as a law student and then as a clerk and a young
lawyer, you had to sort of think about quite a lot. and you know, along with other ideas that were the exact opposite of them. do put myself in a camp of, you know, that i am more text yulist than some of my -- textualist than some of my colleagues are. that doesn't mean i'm down the line with justice scalia and his views on statutory interpretation. we think different things about when to use legislative history. he thought never. [laughter] i think it is sometimes appropriate. but often not. so i think there are ways in which we vary as you can see. because sometimes we disagreed on statutory interpretation keases. sometimes using the same method method, we just reached a different result. odge metimes our method
call differences may have -- methodical odge call differences may have contributed to that. but i do think i put text first and pay attention to text. i cannot really imagine except statute, it says what doing it says, that's where you stop. >> would you consider a lawmaker's intent? justice kagan: i don't think you et a followup. >> hello. thank you very much for being here. y name is allen. i'm at g.w. law. justice kagan: you're in the wrong building. >> i know. i'm a georgetown undergrand alum. i didn't burst into flames when i walked in the door. going back to the discussion of your writing style, it made me
think of a case from a few years ago involving a spiderman toy. justice kagan: yeah. >> you made several references to spiderman comic books which as aed for the i really appreciated. so part of me wants to ask you who your favorite spiderman is, but more seriously i also want to ask you whether you see that as part of a way to kind of reach people and sort of meet them where they are? and obviously you need to judiciously support those kind of pop culture references but i'm curious what you think, how useful you think that is. justice kagan: you know, it's funny. the case that you mentioned, the case that i mentioned because i was talking before about stare decisis, it's a case about that and the one i told you i wrote the majority opinion on about this patent decision. it was the fact of the case, it's not like i just started talking about spiderman. all right.
so i mean, you know. i read spiderman as a kid. my brother was a big comic book afisha gnaw doe, had to know a little bit about what he thought. he case was about a spiderman, it was like -- we had one in my office. you sort of put it over your hand and went like this. and webs came out, you know. everywhere. right. it was like who had a patent on this invention is what the case was about. when you come to writing an opinion like that, that is low hanging fruit. you can't get a spiderman reference into a case like that, you're not working hard enough. but it was. -- it was fun. i had a fun time writing that. not just because of the substance, be which i think was important but because, you know, who can't have a good time writing about like spiderman
gloves. and at the end, i think with the aboutaragraph of and you talked the last part of the opinion i e i was talking about, don't remember how it related to the substance of the decision, but what was it, with great power comes great responsibility, is that the idea? [laughter] justice kagan: we have the power to overrule cases but we have the responsibility to use that power. [laughter] justice kagan: not often. it seems appropriate. train train which was -- mr. treanor: which was your favorite spider map movie. london i ng back from thought it was pretty good.
[laughter] mr. treanor: it is 5:00. what an extraordinary hour. so thank you very much to justice kagan. [applause] >> thank you for a thought-provoking conversation. and i thank the council of lawyers in making today's events possible. if you are not a member, please do join us and we invite everyone to join us at the reception at the top of the stairs. so thank you very much. [applause] justice kagan: that was fun. thank you so much. [captions copyright national cable satellite corp. 2019] captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org
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