November 2018 | Around the ABA

What Justice Kagan told ABA about decision-making, politics, pro bono, more

In honor of the 10th anniversary of the National Celebration of Pro Bono, U.S. Supreme Court Associate Justice Elena Kagan sat down with American Bar Association President Bob Carlson at Georgetown University Law Center on Oct. 24 to discuss pro bono service, how her prior experience serves her as a justice, whether or not the Supreme Court is politicized and more.

As dean of Harvard Law School from 2003-09, Kagan said she saw by meeting alumni that lawyers can do pro bono work in very different ways ­– full time, in smaller and larger increments as career trajectories allow and through philanthropy. Opportunities to make a difference abound, “and that’s a great thing about the legal profession,” she said.

Harvard Law had a mandatory pro bono requirement (of about 50 hours, she recalled), and she said most students ended up doing more. “The real challenge was to create opportunities,” she said.

Kagan, the only member of the Supreme Court who had not previously served as a judge, joked that when she served as President Barack Obama’s solicitor general she would “think all the time about how to convince nine justices, and now I spend all my time trying to convince eight [other] justices.”

In addition to being the U.S. government’s lawyer, Kagan pointed to being a law professor (at the University of Chicago Law School between 1991-95) as excellent training for the nation’s highest court. When she writes opinions, “I think about how I would teach it to have everyone understand it.”

“You shouldn’t have to be an expert to understand what this institution is about,” she noted.

In the hour-long discussion, Kagan said the Court “has to be concerned” about being too politicized. She called the “most extraordinary thing” about the Supreme Court is that Americans believe in it “even when it does things that many people disagree with” and nonetheless follow its decisions. “It’s a very precious thing that the Court needs to protect.”

In a typical year, she said, the Court decides unanimously on about half of their cases, is “lopsided” on about one-third of them and is more closely split on the remainder. Although she said the public suspects the 5-4 decisions “reflect the party of the president who nominated us,” in fact, when they rule on those cases, “it’s not because we’re partisan in the way that people in Congress are partisan; it’s because we have certain judicial philosophies, thoughts about how to interpret the Constitution, thoughts about how to interpret statutes, thoughts about what the constitutional commitments mean that lead to predictable outcomes,” Kagan said.

“It’s not partisan, but you can see how people would look at that and say, ‘well, what’s going on there? Is this just politics by another name?’ Which would, I think, be very damaging for the Court and what it does in our society,” she said.

“Every single one of us should think about that,” the justice said, adding that it was especially important “during these polarized times to look and see if there’s something smaller we can agree on, some greater consensus we can achieve.”

Calling civility “an exceptionally important thing,” Kagan said, “we make progress by listening to each other,” and “echo chambers are pretty boring places.” She urged the audience to be more respectful to each other and “let’s find some things we can agree on.”

Looking back on her confirmation process, Kagan said that when she made “courtesy visits” to senators, she was asked about her views on guns way more often than her views on abortion. A senator from Idaho emphasized the importance of hunting in his state, and the New York City native, unfamiliar with gun culture, promised him that if she was confirmed she would ask Justice Antonin Scalia to take her hunting. That resulted in two or three hunting trips with Scalia and his friends each year. “I actually quite liked it,” Kagan said, adding, “it was a good lesson.”

Carlson concluded by asking Kagan if she gets recognized outside Washington. “Less and less,” the justice admitted, although someone did come up to her in a restaurant and say it was an honor to meet Justice Ginsburg!

The National Celebration of Pro Bono began in 2009 by the ABA Standing Committee on Pro Bono and Public Service to showcase pro bono service. In the 10 years since, more than 7,000 events have taken place in all 50 states, the District of Columbia, Puerto Rico and Canada. Kagan was the honorary chair of the 2018 National Celebration, which ran from Oct. 21-27.

To view a video of the event, click here.