Supreme Court Justice Kagan Shares Her Insights With Berkeley Law Students

Dean Erwin Chemerinsky and Justice Elena Kagan at Zellerbach Auditorium, Berkeley Law School. (Photo courtesy of Jim Block)

BERKELEY, Calif. (CN) – In a visit to U.C. Berkeley Law School Monday, U.S. Supreme Court Justice Elena Kagan shared her thoughts on studying law, divisive politics and the career disappointments that led to her reaching the highest court in the nation.

“Sometimes the things you think you wanted – it turns out you’re better not getting them,” Kagan said.

She cheerily called her failed nomination for a judgeship on the D.C. appellate court in 1999 “a high class disappointment,” but one that better prepared her for her current job.

“I was nominated when I was 39. I think if I had gotten that I would have become a judge too early and I would have done the same job from the time I was 39 until the end of my career,” she said. “The likelihood was I wouldn’t have gotten to the Supreme Court if I had gone that route.”

The same could be said of any number of decisions she’s made along the way, as Kagan reflected on her serendipitous route to the Supreme Court in a conversation with Berkeley Law Dean Erwin Chemerinsky.

Though her father was a lawyer, Kagan didn’t think of law as a career path growing up. She majored in history at Princeton and for awhile considered becoming a history professor.

“My senior thesis convinced me that was not the answer,” she said.

Medicine was out because she hated blood. She decided law would allow her to keep her options open.

“I went to law school for the worst possible reasons,” she said. But Kagan found she loved studying the law because she found it stimulated her analytical mind and how she “could see how it made a difference in the world.”

She spent much of her career in academia, first as a professor at the University of Chicago Law School, and later as Dean of Harvard Law. She also served as President Bill Clinton’s Associate White House Counsel and policy adviser in the 90’s, a stint she characterized as exhausting but exciting.

“The White House is a pretty intense place. But it was exciting,” she said.  “Anyone who’s not excited about working in the White House. . . “ Kagan trailed off to laughter from the crowd.

She said her nomination by President Barack Obama for Solicitor General in 2009 came as a surprise.

“When the job was offered to me, I really had to think about taking it,” she said.

Obama had previously vetted her for a different position, but it went to someone else.

“And they said what they really want is for you to be Solicitor General. And I said ‘I think you have the wrong person.’ So I thought about it for a few days and said, ‘Well I guess if they’re confident in me.”

Her first oral argument was in the Citizens United v. Federal Election Commission, a controversial decision upholding political spending as free speech.

Citizens United was a scary one to do first because you felt the whole world was looking at you.  I never thought the case hung on my performance but it was scary. My heart was beating fast. I owe a lot to Justice Scalia. He has an argumentative style, but he has a style that lets you answer. And it’s a good style to bring a lawyer into an argument,” she said.

“I got a sentence and a half in and Justice Scalia leaned over the bench and he said ‘wait, wait, wait, wait,’ four times. And then he proceeded to tell me everything I said was wrong.”

And then Kagan delivered the line that garnered the most applause of the night.

“When somebody challenges you like that you just have to go back at them.”

But Kagan said Scalia’s questions were helpful for her.

“The questions he asks were very blunt and very hard but he would give you a chance to answer them. It’s not a performance. He has questions and he wants people who can answer them.”

“I got four words out before Justice Scalia interrupted me,” Chemerinsky said, laughing.

He asked Kagan about how she handles disagreement with her colleagues.

“How do you deal with the justices on the other side?” he asked.

She laughed. “I thought you were going to say how do they deal with me?”

“How do you deal with each other,” Chemerinsky said.

“Justice Scalia had a saying, if you take it personally you’re in the wrong line of work. I think that’s true,” Kagan said.

She said although she disagrees strongly with Chief Justice John Roberts, she admires him as a jurist and a person.

“I admire the chief justice enormously. If we had more time I’d give you all of the chief justice’s many virtues,” she said, noting her vehement dissent in a recent gerrymandering decision. “It doesn’t make me admire him any less or like him any less. I find it perplexing that you can’t like someone even if you disagree with him strenuously.”

She added, “There’s more to people than what they think about issues. If you ever want to do anything you’re probably going to have to get along with people you don’t see eye to eye with.”

Kagan did not take questions from reporters, but chose to answer a few questions from law students, one of whom expressed frustration with what he viewed as a polarized court that makes decisions along political lines.

“I think your doubts seem a little bit overblown to me,” she said. “I don’t mean to say that in a derogatory way at all. I understand the questions people have about this.”

She added, “The kinds of cases where the court seems very politicized are a small minority of our docket.”

She urged everyone to give the court the benefit of the doubt.

“They’re all operating on complete good faith and more often than you might think, do things that are not expected of them.”

Kagan ended the talk with a note of optimism. “Don’t despair,” she said.

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