Supreme Court Justice discusses her appointment, cancel culture, and more
Associate Justice of the Supreme Court Elena Kagan sat down for a conversation with Dean G. Marcus Cole of the Notre Dame Law School in the DeBartolo Performing Arts Center on September 22. The Friday discussion, the second event of the 2023–2024 Notre Dame Forum season, covered topics ranging from Kagan’s life before serving on the Court to her philosophical qualms with originalist jurisprudence.
Kagan served as dean of Harvard Law School from 2003 until 2009, when she was appointed the nation’s first female solicitor general. In 2010, after only fourteen months as solicitor general, President Obama nominated Kagan to the Supreme Court, where she filled the vacancy of retiring Associate Justice John Paul Stevens. She was the first woman to occupy the seat, and, as an academic, had notably not argued a single case in front of any court at the time of her appointment.
Dean Cole began the conversation by focusing on Kagan’s life prior to her nomination. When asked if she thought her experience as an academic gave her a different perspective from her fellow justices, she responded that she thought it had a greater effect on how she wrote her opinions than the outcomes of her rulings.
“Justice Barrett is essentially an academic. And we’re the only two on the court now … I’m not sure that academic background leads to a particular kind of judge. I’ll tell you the way I think it’s affected me most …. I wanted to figure out a way to present ideas in a way that is comprehensible to people.”
Kagan also reflected on her time as solicitor general (a position sometimes referred to as “the tenth justice”) and how it affects her current work at the Supreme Court. “It’s the coolest job in the world … I would have loved to have spent a few more years there. But when the President calls and says he’s ready to appoint you to the Supreme Court, I think it’s the wrong answer to say ‘I’d really like to be Solicitor General.’”
One of the most notable lines to emerge from Justice Kagan’s confirmation hearing was her now-famous quote: “We’re all originalists now.” When asked about the line by Dean Cole, she explained that it is actually an incomplete fragment. “The sentence goes, ‘So in that sense, we’re all originalists now.’ Well, you can tell from ‘in that sense’ that was a more complicated statement. It came after a long discussion about why I was not an originalist in the conventional understanding of that term, but instead why I thought that constitutional meaning evolved, developed over time, and why that was consistent with, consonant with, what the framers wanted and consistent with the document that they gave us.”
Dean Cole steered the end of the conversation towards her experience as dean of Harvard Law School. He questioned her about how she would approach current phenomena within academia such as cancel culture and the threat it might pose to free expression in the classroom. Justice Kagan’s response once again highlighted her desire to persuade others. She said, “Educational institutions are supposed to be about learning, exchange, and engagement with ideas, including ideas you don’t like. And, if nothing else, nobody has ever managed to persuade a person who they don’t understand.”
Kagan continued, “So put yourself in another person’s shoes and try to figure out where that other person is coming from and why she thinks what she thinks in order to persuade that person …That sort of exchange is what universities and other educational institutions are all about. And, I should say, maybe especially law schools.”
Sophomore Shri Thakur responded positively to the justice’s visit, saying, “I very much appreciated the opportunity to attend Justice Kagan’s talk. I was particularly impressed by her eloquent refutation of originalist philosophy, even if her own jurisprudence is often an incoherent perversion of the classical common law tradition.”
At the closing of the talk, Kagan voiced her support for Notre Dame football but denied allegations that she would be the ESPN College Gameday guest picker. As a token of appreciation for her visit, Dean Cole presented Justice Kagan with a large “Rule Like a Champion Today” sign, which she accepted and promised to display in her chambers.
Justice Kagan is one of several Supreme Court Justices to speak at Notre Dame in recent years. Justice Brett Kavanaugh gave the keynote address for the law school’s Federal Courts Symposium this January. Justice Amy Coney Barrett, an alumna and former professor in the law school, delivered the conference’s keynote the previous year. Additionally, Justice Clarence Thomas delivered the Center for Citizenship and Constitutional Studies’ 2021 Tocqueville Lecture.
Kagan’s lecture is available for viewing on Notre Dame Law School’s YouTube channel.
Will Grannis is a junior studying Honors Mathematics and Theology. While he can in theory be reached at email@example.com, he is notoriously bad at responding to emails and so it is much easier to get ahold of him in his hammock between Zahm and Stanford.
Photo Description: Justice Elena Kagan sits for her official Supreme Court portrait
Photo Credit: Collection of the Supreme Court of the United States, Wikimedia Commons
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