All Rise

Justice Kagan visits Ohio State

By Elizabeth WeinsteinThe Ohio State University Law School Magazine | winter 2016


“You can see by the weather why I came here.”

U.S. Supreme Court Justice Elena Kagan stood at the podium at the Barrister Club on Tuesday, Sept. 29, surveying the crowd of alumni, faculty, and staff members in the room, and, with her signature wry sense of humor, broke the ice with a joke about the cool, gray, and rainy weather that had persisted, stubbornly, all day.

She had come to campus at the invitation of her longtime friend, Dean Alan C. Michaels, to share highlights from her life and career as the 112th justice (and the fourth woman) on the Court. During her two-day visit, she also spoke with a small group of students at the Barrister Club, met with faculty, and was the keynote speaker at the Program on Law and Leadership’s annual speaker series (a standing-room only luncheon for 400 featuring a conversation between Justice Kagan and Dean Michaels).

At the events, Justice Kagan recounted the story of how she and Dean Michaels first met in 1987, when she worked as a clerk for U.S. Supreme Court Justice Thurgood Marshall, and he as a clerk for Justice Harry A. Blackmun.

Reflecting on her clerkship with the late Justice Marshall, who she referred to as “the greatest lawyer of the 20th century and one of the greatest lawyers of all time,” Kagan recalled the iconic justice as being a master storyteller.

“When I clerked for him,” she said, “he was looking back over the course of his life and reflecting on it, and that meant that we were treated to a kind of master class in a significant part of American history. He was funny. He was kind of earthy. Stories that should have made you cry did make you cry, but also made you laugh.”

Humor comes naturally to Kagan, too. She is known to work pop culture references into her judicial opinions (she referenced Tommy Tutone’s “867-5309/ Jenny” in an opinion for the 2013 case American Trucking Association v. City of Los Angeles, for instance).

And, when a law student asked if Kagan had seen the episode of comedian John Oliver’s “Last Week Tonight,” on which he argued that cameras should be allowed inside the Supreme Court (and created a video featuring an all-canine Supreme Court to accompany audio from an actual oral argument for viewers to watch in the meantime), Kagan laughed and wondered aloud why she was portrayed as a bull terrier in the segment, when Justice Samuel Alito was a fuzzy Portuguese water dog. Then she pivoted to discuss the more serious issue of cameras in the courtroom. “I can make arguments on both sides, and, in the end, come down on the side of caution. There is a little bit of fear that the very fact of cameras in the courtroom will change what happens during that part of the process, and in ways that are not for the good,” Kagan explained. “Congressional hearings did not become better and more substantive when they put cameras in the room. That just did not happen.”

She also discussed her experiences serving as the first female dean of Harvard Law School, the first female solicitor general, and the fourth woman on the Supreme Court.

“I thought it was fluke-y that I served in these ‘first’ roles because I really came along at a time when most of the work in getting women into those first roles had already been done,” she said, “And I’m reminded of this every day on the Court.”

When pioneering justices Sandra Day O’Connor and Ruth Bader Ginsburg graduated from law school, they struggled to land jobs and clerkships because those roles just did not exist for women.

“These two remarkable women created these remarkable legal careers out of nothing—out of maneuvering around and finding places that they could show their talents, but in none of the typical ways that their male colleagues did,” Kagan said.

By the time Justice Sonia Sotomayor and Kagan were sworn onto the Court, however, everything had changed.

“It’s not like all of the problems have been solved, but so much of the work had been done, and I really feel that I stand on the shoulders of people like Justice O’Connor and Justice Ginsburg, and my life was so, so much easier because of what they did,” she said.

Candidly, Kagan also revealed that she used to advise college students to go to law school for the right reasons—that is, until she realized that she herself “went to law school for all the wrong reasons… because I couldn’t think of anything else to do and I wanted to keep my options open.”

As an undergraduate at Princeton University, she majored in history and originally planned to go on for a Ph.D. in the subject matter, but while writing her senior thesis, she realized that a life spent in the archives would not adequately fulfill her.

“I did go to law school not knowing quite what would come of it, but I loved law school from the first day,” she said. “I thought it was just so intellectually challenging and stimulating—there’s a large amount of law that is figuring out really difficult puzzles and I liked it. But, it did not seem at all like an academic exercise. It mattered in the end, getting in the right answer.”

“That’s why I love my job now,” she continued. “On the one hand, it’s ‘an intellectual feast,’ in the words of Judge [Robert] Bork. And, on the other hand, it’s much more. It matters in people’s lives. To have a job that combines those two things is to have an incredible job.”

She added that she approaches writing Supreme Court opinions in much the same way she approached writing her law school papers.

“I think of writing as being sticky or unsticky. The sticky writing is the kind of writing that you want—it’s the kind of writing that stays with people. It’s finding turns of phrase and ways of explaining things that people grab onto and don’t let go. And that’s what I try to think about when I write opinions.”

Like all legal careers, Kagan said hers has been marked by ups, downs, and nerve-wracking moments. Early in her tenure as solicitor general, she argued for the government in the Court’s Citizens United campaign finance decision, and moments after beginning her opening argument, Justice Antonin Scalia interrupted her with a stern, “No, no, no, no, no.” But she powered on and was better, and stronger, because of it.

“When you have scary moments, they are always made a little less scary by working hard. I think that’s true for most scary moments,” she said. “If you’re scared of something, work hard at it.”

3L Mandi Grandjean said that the most valuable piece of advice she took away from Kagan’s visit to Moritz was that “great leadership is really more about being able to listen well than it is about being able to speak. Whether at Harvard or the Supreme Court of the United States, Justice Kagan has been able to unite many groups of people by listening to what they have to say, rather than just talking at them. I found this to be crucial advice for anyone in general, but particularly for aspiring attorneys who must, one day, be able to listen well to whomever they are representing.”

2L Brooks Boron, who attended the luncheon for Kagan, said the justice is “one of the best legal minds of our generation but was still genuinely interested in the lives of us law students.” He brought his copy of the Supreme Court’s decision in Obergefell v. Hodges and, upon meeting the justice in person, asked her to sign it.

“After signing my copy of the Obergefell decision, Justice Kagan offered me a piece of advice to always continue through adversity, and encouraged me to continue on my path of public service,” Boron said. “I won’t forget the laugh we shared when I told her I hoped to be nominating her future colleagues and she looked at me and sternly said, ‘I have no doubt you will, just make ’em good.’”