There are four of us [on the Court] from New York City. We have every borough covered except for Staten Island; we’re waiting for that Staten Island judge.
– Justice Elena Kagan, speaking last night with Leon Wieseltier of The New Republic for the seventh annual Yitzhak Rabin Memorial Lecture, “Law and Justice,” at the Sixth & I Historic Synagogue in Washington, D.C.
We first heard about Justice Kagan’s appearance from an Above the Law reader who attended:
I just came from seeing Justice Kagan talk at 6th & I Synagogue in DC. I hope that ATL is covering it. She was amazing, but it was an interview format, and the interviewer (Leon Wieseltier) was absolutely terrible. She handled his awful questions with grace, and managed to still give interesting thoughtful answers. I came away from it with so much more respect for her, and I was already a fan.
Wieseltier is a legendary man of letters, but it’s not clear why he was interviewing a legal figure like Justice Kagan. Added our source:
What is really frustrating me now is how, no matter how well she spoke, the most memorable part of the evening was how bad the interviewer was. It was all my friends and I talked about afterwards. In addition to asking questions that ranged from confused to mortifying, he went on long monologues himself, and often interrupted her to add nothing of substance….
He (1) knew virtually nothing about the law, but still tried to ask questions about it; and (2) is clearly an interesting, funny person, but seemed to think that the audience was there to hear him speak and not her. He also made a lot of embarrassing wink-wink-nudge-nudge liberal comments, when she had made it very clear that she wasn’t going there (and I’m quite lefty and was bothered by it).
I think he was chosen because he has kids who go to the school sponsoring the lecture. She really was amazing though.
Okay, enough about Leon Wieseltier; let’s hear more about what Justice Kagan had to say.
For starters, here’s the law school that Lady Kaga called out: Columbia. From Politico:
[W]hen speaking at law schools, Kagan said she is often asked why none of the justices come from law schools besides Harvard and Yale, though “Justice [Ruth Bader] Ginsburg spent one year at Columbia — you know, slumming it.”
The justice was joking, CLS folks; no need to take offense. But here’s an interesting fact: as you can see from the Wikipedia list of Supreme Court clerks, Justice Kagan has yet to hire a single clerk who didn’t graduate from an “HYS” school (Harvard, Yale, or Stanford). If Justice Thomas is most democratic of the justices in his clerk hiring, publicly boasting about his hiring out of lower-ranked schools, then Justice Kagan is the most elitist (at least if you go by law schools).
(By the way, readers, I’m leaving for a long vacation in my ancestral homeland of the Philippines next Wednesday, but I promise you a Supreme Court clerks hiring round-up before I go. So please email me with news of any hires that have not yet been previously reported in these pages. To see the hires I already know about, click here for the last hiring report.)
Echoing her prior remarks denying that the Supreme Court is politicized, last night Justice Kagan tried to dispel the myth of a deadlocked Court controlled by Justice Kennedy:
Kagan also discussed her colleagues, saying that a lot of persuasion happens on most cases, despite “the stereotype of the four-four and we try to figure out where Justice [Anthony] Kennedy is.”
Kagan said that, although there are cases where justices “just see the law differently,” there are also those “where you can persuade each other and you can find a greater answer than anyone could see at the beginning. … I love the cases where you can and you do move minds.”
Yeah, I love ERISA cases too. (No, seriously — see, e.g., the star footnote.)
In the holiday spirit of warm fuzziness, Justice Kagan praised a colleague from the other side of the aisle:
Asked to discuss how she interprets the language in laws the justices consider, Kagan credited Scalia with changing the direction of the court.
“This is in some ways a testament to one of my colleagues, to Justice Scalia, because if you look back 30 years ago … there was much less attention paid to the words Congress used to write a statute,” Kagan said. “One of the terrific things he has done is to make people engage with the words that Congress actually used, because that’s what they thought about and that’s what they actually passed.”
Ah yes. Thanks in large part to Justice Scalia, “we are all textualists now.” (See footnote 20 of this paper for one citation for that common saying. Cf. Ronald Dworkin (“We are all originalists now.”).)
Kagan says she loves all her colleagues.
Aww, we do too. Happy Holidays, Your Honors!
Elena Kagan talks diversity and (dis)agreement on the Supreme Court [Politico]
Justice Kagan praises colleague Scalia for his work on interpreting statutes [Associated Press via Washington Post]