Justice Kagan discusses her path to the Court, building ‘common ground’

President Liz Magill sat down for an inauguration day conversation with Supreme Court Justice Elena Kagan, discussing topics ranging from Kagan’s clerkship with Thurgood Marshall to the importance of the current court finding “common ground” to better address the cases before them.

In his introduction, Trustees Chair Scott L. Bok set a relaxed tone for the event.

“Justice Kagan and President Magill have a great deal in common,” he said, “And their careers have followed remarkably similar paths.” This common path included Supreme Court clerkships, as well as public service and academic appointment. Kagan clerked for Thurgood Marshall, Magill for Ruth Bader Ginsburg; Kagan served in the Clinton Administration, and Magill worked for U.S. Sen. Kent Conrad; Kagan served as dean of the Harvard Law School from 2003 to 2009, and Magill was dean of Stanford Law School from 2012 to 2018.

“I’m guessing they will have a lot to discuss,” Bok said.

The conversation continued with some friendly banter. Kagan began by asking to lead off their discussion by congratulating Magill on her inauguration and congratulating the entire Penn community on their good fortune of having Magill to lead them.

“Liz and I, as you just heard, we share a bunch of things in common; we go back a long way, and I can tell the entire Penn community that they’ve got the real deal here,” Kagan said. “I think you are going to get a lot of really innovative ideas, a lot of good sense, good judgment, a lot of integrity—all wrapped up in one package.”

Magill thanked her and replied, “That is incredibly kind. I hope I can live up to that billing,” to which Kagan said: “Well, you’d better.”

Friday afternoon’s conversation—in front of an in-person audience of about 900 guests at Irvine Auditorium and many more watching online—capped off a festivities-filled day surrounding Magill’s inauguration as Penn’s ninth president.

“How do you all get along when you disagree so much?” Magill asked, pointing to a specific example of Kagan going on several hunting trips with Antonin Scalia, despite their ideological differences.

View large image

Kagan described how she and her fellow justices go to lunch a few times a week, and they have a rule that they can’t discuss any cases.

“So you talk about the normal things that people talk about. We talk about baseball, we talk about kids, we talk about grandchildren,” she said. “The idea behind it is that we should all get to know each other as human beings, and when you will get to know each other as human beings it’s easier to talk about hard work things in a way that’s productive and collaborative.”

She sees finding those commonalities as a way to help bridge their differences on cases. But she emphasized that their worth depends on whether they actually help to produce that result.

“Do we engage with each other in a way that attempts to find common ground, in a way that fosters principled compromise, or is that beyond us?” Kagan said. “I really want it to be the first, but that’s a work in progress.”

Magill asked what Kagan learned from Marshall during her clerkship that she takes with her into her current role on the court.

Marshall was one of the few Supreme Court justices whose importance had a great deal more to do with what he did in a non-judge capacity than in a judicial capacity, Kagan said, referring to him as “the greatest lawyer of the 20th century.”

Before he even arrived at the court “he really did reshape American law and reshape American society. He was the principal lawyer in the struggle to achieve racial equality, to eradicate Jim Crow segregation in the United States.

“If you’re going to be the greatest lawyer in the 20th century, maybe the real question is, Have you done the most justice? And he did the most justice of anybody,” she said. “It was just such an honor to work for him that year. We felt ourselves the luckiest people in the building.”

They also discussed how Kagan ended up studying law, which she said was “for all the wrong reasons.” Following her history studies, she said she was unsatisfied and felt law school was a place where she could keep her options open until she figured out what she really wanted to do.

View large image

“From the very first moment, I loved it. And what I loved about it was that it was incredibly intellectually stimulating, it was like a gigantic puzzle, but at the same time it makes a real difference in the world,” she said. “The combination of those two things—something that was analytically extremely demanding and where you can also see how it could have an impact in the world and in people’s lives—that’s what I love.”

Asked what her favorite job has been, Kagan replied it was her solicitor general role, which she called “the best job in America.” It was a post Barack Obama nominated her for just months before he tapped her to become associate justice of the Supreme Court in 2010.

Turning to Kagan’s position on the Court, Magill asked which of the opinions and dissents that she’s authored were her favorites.

She highlighted an opinion that Scalia assigned her to write on a 2015 patent dispute over a toy “Spiderman” glove that shoots webs from the wrist. It was a fun opinion because of the superhero angle, she said, but it also gave her a chance to discuss why “stare decisis,” the doctrine of precedent, is of such importance in the law.

“The first reason is that law should be stable. People depend on law; people rely on law,” she said. “You give people a right, and then you take the right away. In the meantime they’ve understood their lives in a different kind of way.”

The second reason is that judges should be humble, she said.

“People have been doing law for a long time before us, and the way the law develops—usually and best—is when it develops slowly and incrementally, by the work of many judges over time,” she said. “It’s a kind of hubris to say, ‘We'll just throw them all out because we think we know better.’”

The third reason is it prevents the court from becoming politicized, with judges coming on the court and overthrowing the apparatus and legal rules.

“Rather than law-building in this incremental, minimalist way over time, there are all these jolts to the system, and it begins to look not like a court and more like a political institution. That’s something that the courts need to be incredibly cognizant of and wary about,” Kagan said. “Courts should look like courts. Courts should be courts. Courts should act like courts.”

Asked if she thought of herself as a dissenter on the current court, Kagan told Magill she doesn’t necessarily want to be, but she found herself in that position a lot last year. She said despite it all, she sees herself as a clear-eyed optimist about the future.

“I’m clear eyed about the challenges but still remain hopeful. But time will tell,” she said.

The talk ended with a series of lightning round questions that hit on Kagan’s favorite novels (“Middlemarch,” “Wolf Hall” and “Lincoln in the Bardo”); binge-worthy TV; (“The Sopranos” and “Game of Thrones,” minus the last season); and what she does on her days off.

“These days, I golf,” she said.

The entire conversation and all the inauguration events can be viewed at https://inauguration.upenn.edu/multimedia.