Minnesota Law

Fall 2019
Issues/Contents
For the Record

SCOTUS Seat Is ‘a Pretty Good Gig’

Justice Elena Kagan reflects on court, career journey in 2019 Stein Lecture

Tony Nelson

Before being appointed to the U.S. Supreme Court, Elena Kagan had always wondered what happened during the highest court’s secret deliberations, when doors are closed and others are barred from eavesdropping.

Now she knows.

For nearly a decade, Kagan has been on the inside, one of only nine people who serve as a U.S. Supreme Court justice, deciding the fate of landmark cases—and sometimes more mundane ones.

“The whole thing is a pretty good gig,” Kagan said. “It’s hard not to love the job.”

Kagan was the featured speaker at the 2019 Stein Lecture at Northrop Memorial Auditorium. A capacity crowd of about 2,700 was on hand at the 75-minute event to hear an engaging conversation between Kagan and Robert Stein ’61, Everett Fraser Professor of Law. The tone of the talk ranged from poignant to humorous.

Before being appointed by President Barack Obama, Kagan held such jobs as U.S. Supreme Court clerk, law professor, law school dean, and solicitor general of the United States.

University President Joan T.A. Gabel addresses a capacity crowd at Northrop Auditorium.

Prior to her confirmation hearing in 2010, Kagan made informal visits to U.S. Senate offices. Many Second Amendment supporters from rural states asked if she’d ever been hunting. Kagan, a native New Yorker, hadn’t, but pledged to give it a try. After joining the bench, she began accompanying Justice Antonin Scalia on hunting trips to Virginia, Wyoming, and Mississippi.

She enjoyed the trips and forging a connection to Scalia, who died in 2016. “I thought of him as a great friend,” she said.

Like Scalia, Kagan has issued some scathing dissents, including her minority opinion in Rucho v. Common Cause, a partisan gerrymandering case upholding the rights of state legislatures to draw political maps in favor of ruling parties.

“Of all times to abandon the Court’s duty to declare the law, this was not the one,” she wrote. “The practices challenged in these cases imperil our system of government.”

It was one of three dissenting opinions that she’s read from the bench. “It’s not common, but it is done,” she said. “It’s a symbolic action.”

The words in those dissents are designed to be convincing. “We believe in what we do,” she said. “You should write the most persuasive argument you can about why the majority opinion is wrong.”

Professor Stein pointed out that Kagan’s writing can also be very witty. He cited as an example Kimble v. Marvel Entertainment, a patent law dispute involving the Web Blaster, a Spider-Man-themed toy. In writing the majority opinion, the justice referred to the “web of precedents” in the case and stated that “with great power—there must also come great responsibility,” a reference no Spider-Man buff could miss.

One of the lighter moments in the discussion came when Stein asked Kagan about the humor at the U.S. Supreme Court and oft-reported calculations of which justice is funniest based on laughter from the gallery elicited during oral arguments. Kagan noted that she finishes somewhere around the middle of the nine justices when their humor abilities are so quantified.

“There are four other justices who could be sitting in this chair and you would be laughing harder,” Kagan said, with audience members loudly laughing in response.

Kagan offered some career advice for the many law students in the audience—be flexible in your thinking about your career and the twists and turns it will take. She pointed out that in a couple of cases, it was not getting what she wanted that set her on her path to a U.S. Supreme Court appointment. For example, she experienced disappointments when she was up for a judgeship at the U.S. Court of Appeals for the D.C. Circuit in 1999 and was a finalist for the presidency of Harvard University in 2007. In 2009, an unexpected opportunity to serve as solicitor general in the Obama administration materialized, paving her way to U.S. Supreme Court nomination and confirmation in 2010.

Dean Garry W. Jenkins welcomes U.S. Supreme Court Justice Elena Kagan.
To commemorate her visit, the Law School presented Justice Kagan with a blanket decorated with a vintage map of her native New York City. The blanket was manufactured by Minnesota-based Faribault Woolen Mill Co., whose chairman is Paul Mooty ’85.

Being on the U.S. Supreme Court is not something that can be meticulously planned, Kagan observed. “I don’t think it’s the kind of thing somebody can say, ‘I aspire to be a Supreme Court justice,’ ” she said, “It’s like, don’t.”

Kagan also reflected on her early legal career clerking for Judge Abner Mikva of the U.S. Court of Appeals and U.S. Supreme Court Justice Thurgood Marshall. She called Marshall, the civil rights litigator who served on the court from 1967 to 1991, an iconic figure and a talented storyteller.

“He was the greatest lawyer of the 20th century,” she said.

The Stein Lecture series features talks by prominent judges, lawyers, and government officials on a topic of national or international interest. Previous Stein Lectures have featured Vice President Walter F. Mondale ’56, Chief Justice John G. Roberts Jr., Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor, and the late Justice Antonin Scalia.

Todd Melby is a Minneapolis-based writer and radio producer.

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