By Andrew Cohen
Supreme Court Justice Elena Kagan offered some pointed advice Monday for a packed house at UC Berkeley’s Zellerbach Hall: Embrace risk and potential disappointment.
Addressing hundreds of Berkeley Law students among the audience during her hour-long interview with Dean Erwin Chemerinsky, Kagan urged them to be bold.
“Law students are often too risk-averse; there’s too much planning and too little jumping in,” she said. “You should experiment … One of the virtues of coming to a place like Berkeley Law is that there are so many opportunities. It allows you to try things you’re not so sure you’ll like and not so sure you’re good at. Some of them will work and you’ll say, ‘Wow, that was fantastic.’”
Even without her Supreme Court position, Kagan’s résumé is jaw-dropping: Princeton. Oxford. Harvard. Clerkships for two iconic judges, including Supreme Court Justice Thurgood Marshall. Law school professorships at the University of Chicago and Harvard. Harvard Law’s first woman dean. Assistant counsel and deputy assistant for domestic policy to President Barack Obama. U.S. Solicitor General.
Yet Kagan, appointed to the Supreme Court in 2010, discussed her career path in self-effacing tones. She described the disappointment of losing out on a D.C. Circuit Court of Appeals judgeship, and of being interviewed for the Supreme Court in 2009 after Justice David Souter’s retirement—only to get passed over for Sonia Sotomayor.
Even pursuing law school, Kagan noted modestly, only happened after she derailed her plan to become a history professor: “My senior thesis convinced me that was not the answer.”
“I’ve had lots of disappointments along the way,” Kagan said. “People look at a résumé like mine and think, ‘Ooh, what a golden life.’ They’re not seeing the jobs I didn’t get, that plenty of times I wasn’t sure what to do next … What I’ve learned is, and I really believe this even though it sounds like magical thinking, when a door closes a window opens.”
Earlier in the day, Kagan took part in a Q&A session with students, met with Chemerinsky, helped teach Professor Amanda Tyler’s Public Law and Policy Workshop class, and had lunch with Berkeley Law’s faculty.
In Tyler’s class, Kagan answered questions about drafting opinions, the importance of history and precedent, and her decision-making process. Students typically read a piece of legal scholarship and then discuss it with the author during class. Monday, they read two of Kagan’s opinions and asked her about their substance, the drafting process, cultivating consensus on the Court, and differences between writing as a law professor, advocate, and judge.
“Today was a highlight of my time at Berkeley,” said 3L Christina Crowley. “It was an incredible experience to spend time with Justice Kagan in a small-group setting and hear stories spanning from her confirmation hearings all the way through cases the Court decided last year. She seamlessly slipped back into her previous role as a law professor, sitting at the podium in front of the class and calling on students herself to create an open and relaxed environment.”
Fellow 3L Kevin Cacabelos found Kagan to be “genuinely interested and enthusiastic about answering our questions. I especially appreciated hearing about how she works with other justices on the court, and also about the intricacies of her writing process. Interacting with a Supreme Court Justice in such an intimate setting is a once-in-a-lifetime type of opportunity.”
Described by Chemerinsky as “the best writer of any justice on the Supreme Court,” Kagan credited her mother, an elementary school teacher, and a professor at Princeton “who literally went over every line of my senior thesis twice. By the time I got out of that experience, I learned so much about how to communicate ideas.”
Kagan said clerking for Marshall—“I think he was the greatest lawyer of the 20th century”—and Abner Mikva were instrumental in building her work ethic and confidence. That confidence was certainly tested in her first oral argument as Solicitor General, during the landmark campaign finance case of Citizens United v. Federal Election Commission.
“I got a sentence and a half out, and Justice (Antonin) Scalia leaned over the bench and said, ‘Wait, wait, wait, wait!’—four times—and proceeded to tell me everything I’d just said is wrong.”
Thick skin, good faith
While that experience would seem harrowing to many, Kagan found it to be a telling moment when she later joined the Supreme Court bench. Amid relentless media portrayals of a divided court that reflects an increasingly polarized nation, she cited great mutual respect and camaraderie among the justices—and their collective passion for the law.
“Justice Scalia had a saying: ‘If you take it personally, you’re in the wrong line of work,’” Kagan relayed.
“I find it perplexing that you can’t like someone you disagree with, even on important matters,” she added. “I was extremely close to Justice Scalia, and spent the past few days writing a foreword for a book of his opinions. I like all my colleagues and feel close to many of them. There’s more to people than what they think about issues.”
Kagan amplified that thought when answering a 3L’s question. The student said he was losing faith in the court’s integrity given the predictable 5-4 decisions on high-profile cases that are seemingly decided along partisan lines. “Can you help?” he asked.
“I believe I can,” Kagan replied. She went on to say that “the kinds of cases in which the court seems very politicized are a small minority of our docket … What you find much more is people who did unexpected things in cases that came out in unexpected ways—odd bedfellows, if you will … Don’t despair.”
Kagan discussed the daunting challenge of keeping pace with rapid technological changes, and the problems such shifts can create within the First Amendment, Fourth Amendment, and non-constitutional issues. She also embraced the Court’s role in exhibiting civility and respect at a time when Americans seem increasingly and sometimes bitterly divided.
“The fact that we live in a polarized world increases the responsibility of the Court to think about these things and behave in a non-polarized fashion,” Kagan said. “We should try, to the extent we can, to find consensus and to see how the world looks from a different point of view. I think we should all assume that responsibility.”