Operating with only eight members following the death of Antonin Scalia forced the U.S. Supreme Court to keep talking and find consensus, Associate Justice Elena Kagan said during a talk Friday at the University of Wisconsin-Madison.
It’s not that it is the court’s role to serve as a model of civil discourse, Kagan said. But its job is to decide cases. And if members decided issues too quickly along broad ideological lines, there would be a lot of split 4-4 decisions that would leave lower court rulings intact, Kagan said.
“We would look like a riven institution, we would look like we were incapable of getting work done,” she said. “The only way to get un-split was to keep talking and find a way to reframe the question and find common ground.”
Now that the court’s complement is back to nine with the appointment of former federal appellate court judge Neil Gorsuch in April, Kagan hopes newly honed habits persist.
“I hope we remember not to stop the conversation too soon and the value of finding a place where more of us can agree,” she said.
It has meant that majority opinions did not go as far in defining the law, she acknowledged.
Kagan spoke with Wisconsin Law School Dean Margaret Raymond, whom she first met in junior high school in New York City, from the stage at Shannon Hall in the Memorial Union. The warm exchange between the two women, close friends as girls, focused on Kagan’s personal journey to the court and advice for aspiring lawyers, peppered with insights into the nation’s highest court and the justice’s ready humor.
No pending cases or specific legal issues were touched upon.
Kagan recalled that her father was a lawyer. And unlike Associate Justice Sonia Sotomayor — who has talked of being inspired to become a lawyer by the TV character Perry Mason who conjured up dramatic reversals in cases at trial — Kagan knew there was no magic and less drama in the work of real-life lawyers.
“My father was the kind of lawyer who thought it was a failure to go to court; it meant he had not solved the problem by other means. I understand what a great problem-solver he was. There is very little that is of more value in the legal profession or in life,” Kagan said.
A graduate of Harvard Law School, Kagan was an attorney in private practice, a law professor at the University of Chicago and dean of Harvard Law School. She also served the Clinton White House as associate counsel and policy adviser.
Appointed to the court by President Barack Obama in 2010, Kagan was previously Solicitor General, whose job it is to represent the federal government before the Supreme Court. Her resume meant she had to sit out on a number of cases early in her tenure on which she had worked for the government. It also prepared her to sit on the court and work with her colleagues to decide cases.
The Solicitor General’s job, Kagan reflected, is to persuade nine people — the court justices — of a particular point of view on a case.
“The only thing that changed when I became a justice was that now I only had to persuade eight people,” she said drolly.
Arguing a case before the Supreme Court is “pretty much a nightmare,” Kagan acknowledged. Justices rapid fire 50 or 60 questions to attorneys, and often don’t really care what answers attorneys give, she said.
“We are making points to our colleagues. It is an important part of the process that we are talking to each other up there. But it makes it hard for a lawyer who occasionally wants to interject something,” Kagan said.
She advised any attorney who appears before the court to give up trying to impress the justices with the plum points of their brief. Listen to their questions instead, inevitably aimed at the weakest parts of the case, she said. Have the fortitude to engage over those weak points. “Treat it as a conversation,” she said. “No one is orating at the Supreme Court; no one has any patience for it.”
Now that Gorsuch, and not she, is the most junior member of the court, Kagan has been relieved of duties that typically fall to the justice in that position. Taking notes on deliberations, for example, and answering the door on the rare instances when someone interrupts the justices’ conferences.
The junior justice also is assigned to the cafeteria committee, in order to convey such messages from colleagues as “there’s too much salt in the soup,” Kagan said. The assignment burst her bubble a bit as a new member of court, she joked. But she did get a frozen yogurt machine installed. “Seven years later, people are still thanking me.”
The junior justice also speaks last at initial case conferences where the Chief Justice defines the issues and states a position, followed by all the others in order of seniority.
Last is a good position, Kagan said. It gives the ability to listen to everyone else’s conclusion, figure out the fault lines, synthesize views, and wrap things up while trying to move the views of the others, she said.
“Last month, I said my piece and thought, ‘OK.’ And then somebody else started talking,” Kagan mugged faux outrage. “I just wrapped up!”
Reflecting on being in what for most justices is their last job, Kagan acknowledged that for the rest of her career she moved on when the learning curve flattened out.
It’s no sacrifice to serve on the court, though, she said. “It’s the world’s most interesting job if you are a lawyer. And on most days, it’s an incredible joy. No complaints here.”
This article was edited to remove a reference to a change in format.