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tv   Justice Kagan Remarks at Georgetown University Law Center  CSPAN  July 20, 2019 1:00pm-1:58pm EDT

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she talks about her disagreement with the court's decision in the gerrymandering cases, and the passing of retired justice john paul stevens. georgetown law center hosted this hour-long event. [applause] david: welcome, justice kagan. we are glad to have you here. justice kagan: it's great to be here. thank you to all of the members of the washington council of lawyers for all of the great work they do promoting pro bono and promoting public service. it is an and or mostly important -- an enormously important role in the legal profession so i thank you for what you do and i'm glad to be here. david: we are so delighted you are here and so delighted to cosponsor with the washington council.
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one thing i wanted to add, and david, that was a tradition tremendous intro. it is really hard to get them [indiscernible] [laughter] >> everything else was predictable from that moment. easier --gan: it is it was easier back then. [laughter] back then, it was 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
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seventh grade which was not realy in keeping with what all the ninth graders thought should happen. [laughter] justice kagan: so there were only half as many applicants, you know. >> clearly, the admissions people knew what they were doing. [laughter] justice kagan: again, it is delightful to have -- >> again, it is delightful 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. at, hold justice stevens' se and 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. i'd like to start by talking a little bit about justice stevens. justice kagan: it's a week of
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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 -- man, an 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 respectful of everybody, treated everybody
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with extraordinary dignity. had so much personal class. and 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, 35 years. retired when he was 90 years old. and again still just totally actively contributing to meeting. -- meeting a particular wing of the court at that time. he was a brilliant lawyer in the kind of technical and craft aspect of the job. absolutely brilliant. and at the same time, he had a real passion for justice. a real, you know, an insistence
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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 the 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 in his own decision
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making and independence in his own decision-making. at the same time, he was, you know, he was 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.
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bill: it's interesting. i recently went back and looked at his nomination and the press accounts, one of the big concerns at the time was his health. [laughter] justice kagan: well, they didn't have to worry. [laughter] bill: he had just had a heart attack. justice kagan: what's so striking, actually, i think he seemed so eternal. he was 95 years old, swimming in the ocean every day, you know. bill: it's amazing, because 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. what would you think his greatest legacy is? is there an area he shaped or is there a philosophy others have followed? justice kagan: i think it stretched across such a wide
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range of subject matter areas. i guess i would have a hard time picking just one. am i missing something obvious? bill: i don't think. 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 in the court he was really, you know, a loner. kind of writing his own opinions. justice kagan: when i clerked at 1987 term, in the 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 argued that way and that wasn't what all the other justices were thinking about, or they weren't inking 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
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-- the way to look at this case even though everybody else is kind of over here doing something else. occasionally you'd say, well, that seems a little quirky. but there was always kind of, just this, the way i look 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? 10 or 15 years, so his last 25% of 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.
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it meant some of the positions that he staked out in those last years really were ones where, i know the courts got this wrong, but here's the way you should think about it for the future. bill: 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 who was -- he changed his mind and was candid about that.
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that he -- with affirmative action or the death penalty. he shifted his position over time. which brings us to the question of stare decisis. justice kagan: before you go on, i wanted to respond to that part of it. i was justice stevens' successor and he was endlessly kind to me in terms of offering advice, but always in a kind of grateful way, not imposing advice but being there if i ever had a question, offering whatever wisdom he could. one of the things he 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.
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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 and the time for learning is over. i do think he was not like that. the -- thewas one of 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
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convince yourself that you have reached a point where you know everything, i think. he was the absolute antithesis of that. bill: that's interesting. when i was at fordham, as the dean, there was a symposium of justice stephens' former clerks in academia to mark justice stevens' 30th year on the bench. the talk he gave was called learning on the job. justice kagan: i didn't know that but yeah. bill: what he did was talked about -- the focus was really substantive due process. it,he had a certain take on that it was an oxymoron, when he became a justice, and how he changed his mind over time. and that that's what justices should do. they should learn on the job.
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so it really resonates with your experience with him. justice kagan: and with your original question, about changing your mind. bill: 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] justice kagan: there were these opinions i wrote in my first two or three years that really -- they were just wrong. [laughter] justice kagan: 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 everything. bill: moving from that to stare decisis, the courts changed its mind. you wrote about the importance of stare decisis.
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i think she was talking to marty lederman before you spoke, and 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. bill: and four in which the court overturned precedent. and, in all six, you were not on the overturn precedent. justice kagan: yeah. bill: in the nick case, most recently at the end of the term, you talked about the importance of stare decisis. justice kagan: yeah. 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 ended up writing a majority opinion. it was not particularly a hot button case. it was a patent doctrine which
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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. in the question was -- on that one i wrote the majority. it was a majority -- a 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 to me, 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 if course, sometimes, you do depart from it. we always say it is not an inexorable rule.
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even though i'm 0-6 apparently in the last two years -- [laughter] justice kagan: and i think if you go back further than that, you'll find that my track record is not all that much different, you know it's not like i wouldn't commit to never overturning a case, because sometimes there are real reasons for it. but, i do believe that the heavy presumption is that we shouldn't and there have to be reasons beyond just ordinary wrongness. -- court has a whole list of 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. [laughter] justice kagan: 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
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operate or indeed, how other institutions should operate. more 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. that it's more like no, we learned something since then about -- that makes it incongrouos or that makes it
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, or it un-administrable just makes it morally repugnant. but that, for me, is a pretty high bar. and, in these many cases, i think they're not met. the court has thought about it in recent years. so, 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 law is stable and law is predictable, and that law won't change just because particular
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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 and another person gets on the court, and everything is up for grabs because it's all just what that particular person, you know, what his or her preference is and predilections are, so you can never count on anything, and 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
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this modesty, and 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 sort of a sense of, you know what, before you -- we had a case this year where people asked us to overrule something that something like 40 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. -- ifso, part of it is i'm just paraphrasing what i think i'm hearing -- is that
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part of the rule of law and part of court being understood as apolitical. justice kagan: that was said much more so than i did. [laughter] so nick, somebody wrote -- 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. bill: a round of applause for the justice. [laughter] [applause]
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bill: when you write in dissent, what's your audience? who are you writing for? justice kagan: it varies. you write lots of different kind of dissents. sometimes you write a dissent because you think the court has gotten it wrong and the party -- parties deserve to know that the case is not really a 9-0 case, that 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 you know, there's -- it might 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.
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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 -- battle 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 nick 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
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accepting of 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 out there, who, in some way, can -- can carry on the efforts against this kind of undermining
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of democracy, you know, go for it, because you're right, and 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. now, 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? and, does that make a difference? look, you know, that one was, their defense is like, i saw the case differently. now we start all over again. and there are dissents that are,
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this is abysmally wrong. you know, -- i mean, there were difficult issues 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. bill: there was a very, very powerful dissent. in terms of the writing of something like that, there were so many memorable points. within a case like that, do you do the -- now i'm shifting from
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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 do something like that 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. the way i do it, 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 sort of see how one person wanted to do it, but then i open up a new document on my computer. draft of click the new into a screen, and i sometime 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.
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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. sometimes it 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 wrong. hopefully, in a good dissents, 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.
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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 -- 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
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where it's like, eh, well, i lost, who cares. [laughter] 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. [laughter] justice kagan: 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?
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so it's a combination of both kind of the response, very careful, but the also, very powerful quotes. that 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. 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
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-- 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 can we sharpen those arguments? how can -- you know, sort of all the lawyerly kind of things that i started by saying 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 law can be arcane. and some of these correct arguments can be hard to understand.
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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 what high school students 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. i get that. 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, and 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 a class and say it's
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really 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. how are we going -- how am i going 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
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writing for the court. when you're writing as a dissent, you can be much freer to -- in your style and in the 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 have their own 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 agree on in terms of supreme court history than anything else is that justice jackson was a great writer.
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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? 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 people think i go too far. but he was a writer who i constantly learned from. who are your favorite writers? mr. treanor: jackson.
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justice kagan: it's not even -- yeah. mr. treanor: holmes. holmes is not a great justice in terms of law. [laughter] mr. treanor: but in terms of aphorisms, nobody better. justice kagan: justice brandeis was a quite wonderful writer and quite wonderful justice as well. mr. treanor: justice marshall, chief justice marshall. so many 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. some of them are 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.
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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
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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 things i thought about all the time, with one exception, but i thought all the time, you're a dean 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 a case should come out. notwithstanding how much deans say that they listen or that
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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. effective leadership -- -- and that 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
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or her concerns. so 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 who 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
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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 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] the years in which he was playing that role. years in which he had a kind of natural coalition, 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 that these are nine exceptionally
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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 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. there and there. wow. people are stepping down.
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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 real world experience is lacking on a core like ours where almost everybody has been an appellate judge and frankly 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, anybody who just brings a completely different set of experiences to bear.
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i don't 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 can't think most people who haven't done pretty serious lawyering in their lives would find most of it very interesting. 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 justice kagan and dean treanor for coming. i'm a student at university of texas. i remember when you're discussing justice scalia, and you mentioned that justice
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scalia influenced your statutory interpretation process. i may be mistaken in this, but if you could discuss that more, how does it man fe fest in how -- manifest 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. i do put myself in a camp of, you know, that i am more textualist than some of my colleagues are. that doesn't mean i'm down the
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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 cases. sometimes using the same method, we just reached a different result. and sometimes our methodological differences may have contributed to that. but for the most part i do think i put text first and pay attention to text. i cannot really imagine except in highly unusual cases doing something that i think the text precludes.
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you read a statute, it says what it says, that's where you stop. >> would you consider a lawmaker's intent? justice kagan: i don't think you get a followup. [laughter] >> thank you. >> on the right. >> hello. thank you very much for being here. my name is allen. i'm at g.w. law. justice kagan: you're in the wrong building. >> i know. i'm a georgetown undergrad 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 spider-man toy. justice kagan: yeah. >> you made several references to spider-man comic books which
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as a nerd i really appreciated. so part of me wants to ask you who your favorite spider-man 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? obviously you need to judiciously employ 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 and 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 spider-man. all right. so i mean, you know, i read spider-man as a kid. my brother was a big comic book aficionado, and you had to know a little bit about what he thought.
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the case was about a spider-man, 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. if you can't get a spider-man reference into a case like that, you're not working hard enough. but it was fun. i had a fun time writing that. not just because of the substance, which i think was important but because, you know, who can't have a good time writing about like spider-man gloves. and at the end, i think with the last paragraph of the opinion you talked about the last paragraph of my nic opinion but the last paragraph of the opinion where i was talking about, i don't even remember how
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it was related to the substance of the decision, but what was it, it was with great power comes great responsibility -- is that the idea? yeah. sort of like we have the power to overrule cases but we have the responsibility to use that power. not often. you know? so it seemed appropriate. >> which was your favorite spider-man living? justice kagan: and you talked about the last part of the -- i was coming back from london i 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]
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>> thank you for a fascinating and thought-provoking conversation. i would like to thank the staff and the council of lawyers in making today's events possible. as i mentioned 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 [crowd talking] monday forspan on
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memorial services honoring the late supreme court justice john paul stevens. eastern, the casket arrives at the supreme court where a private ceremony will take place. he will lie in repose in the public is invited to pay their respects. watch live coverage on c-span2,, or listen with the free c-span radio app. on newsmakers, representative -- of washington, chair of the new democrat coalition and the committee on the modernization of congress talks about his legislative priorities. here is a preview. members,p of democratic members in the house who are forward-looking, pro-innovation, pro-economic growth. there are a lot of new members but that is not why we are called the new democrat. in the housets
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that flipped from republican to democrat, 32 of those new members are members of the new democratic coalition. demsll ourselves the new because we try to look it'll problems through a new lens. economic policy for example. there is a lot of focus on to redistribute policies. a lot of our focus is on how you grow that economic pie and make sure everyone can earn a slice of it. often times in washington the atate is on one side looking government as always the problem. in some instances saying government is always the solution. the new democrat say how do we reinvent government and have it work better to solve problems for the american people? strong,ow 103 member the largest dialogical coalition in the house democratic caucus. we have some terrific new members. some folks involved in the national security space, some military veterans, business leaders. we even have an nfl linebacker.
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we are working hard on behalf of the american people. >> would you say you are moderates? >> we are often described that way but i think on economic policies, our big focus is how you grow that economic pie for everybody. >> more of our conversation with congress meant derek kilmer on newsmakers tomorrow at 10:00 a.m. and 6:00 p.m. eastern on c-span. listen with or the free c-span radio app. q&aunday night on c-span's -- >> we found public officials, people who really govern this country -- it is not congress or the president. it is bureaucrats. they write the housing rules and regulations that have the force of law. we found out they don't think much of ordinary americans. >> benjamin ginsberg, professor
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of political science and chair of government so studies at johns hopkins university discusses his book "foot washington gets wrong: the unelected officials who run the government and the misconceptions about the american people." >> we learn that we elect a congress, it makes the law, the president executes the law, the courts review the law. that ain't exactly how it works. the of it we think of law consists of rules and regulations written by bureaucratic agencies, by bureaucrats who are not elected by anyone, and he will often serve for decades. >> sunday night at 8:00 eastern on c-span's q&a. acting homeland security secretary kevin mcaleenan testified on his agency's policy of separating familiesrossing the u.s. southern border. he also challenged remarks made by members of congress about conditions at the tension


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