Written by Phil Brown, Staff Writer
Associate Justice Elena Kagan of the United States Supreme Court visited New York University School of Law on Monday for a public conversation with Dean Trevor Morrison. Before an audience of students and faculty, the pair discussed a range of topics, including the passing of Associate Justice Antonin Scalia, Kagan’s work on the Court, and what law students can do to prepare themselves for a future on the nation’s highest court. The event was sponsored by the Law School’s Supreme Court Reading Group and Moot Court Board.
Initially taking an informal, question and answer format, the conversation turned momentarily somber when Morrison asked Kagan to reflect on how the Court has changed since Scalia’s passing. Kagan, who said she considers knowing Scalia to be one of the “great gifts” she has received in life, noted that the Court is certainly a different place following his death.
“I think we’re less fun,” Kagan said, speaking of Scalia’s absence both within the Court’s chambers and on the bench. “He was a big presence at argument.”
Kagan also observed that the work of the Court has been affected, though not disrupted, as a result.
“There’s a reason courts don’t usually have even numbers,” Kagan remarked, after acknowledging that the justices are especially concerned about reaching agreement now.
Switching topics, the conversation shifted to technology’s impact on the law. When asked whether she thinks the Supreme Court is the branch of government least impacted by technology, Kagan appeared to agree, recalling that, “all the procedures were exactly the same” some 28 years earlier when she clerked for Associate Justice Thurgood Marshall.
Things could be worse, Kagan joked, referring to the Second Circuit, where fax machines are still in wide use. “[It is] better to use no technology at all than to use a fax machine,” said Kagan.
One of only three, sitting justices to have clerked on the Supreme Court, Kagan also fielded questions about her experiences in the judicial branch. Dean Morrison asked, for example, whether would-be justices should have to have previously served on a federal court prior to their appointment to the Supreme Court. Kagan demurred, opining that possibly the best job that could prepare someone for a position on the Supreme Court would be that of United States solicitor general, a position she held for just over a year before her nomination to the Court in 2010.
Kagan recounted how her job as solicitor general required knowing the Supreme Court inside and out while simultaneously serving as an advocate before it. Kagan quipped that, in effect, her job went, “from persuading nine people to persuading eight.”
Kagan was even more candid describing her preferred methods of persuasion. Although she loved writing, “I’m a schmoozer,” she said.
While most of that schmoozing probably happens far from public view, Kagan noted that she thinks of oral argument “as a forum for persuading people,” even in her role behind the bench.
“We sort of ignore the attorneys,” she mused, wondering if the whole thing would “be more efficient if [the attorneys] just disappeared.”
Kagan also offered the assembled crowd advice on being a persuasive advocate at the highest levels. She told everyone to always be comfortable engaging a judge on their terms, even when they turn the discussion to your case’s weaker points. She also emphasized that there are any number of oral advocacy styles that can be effective, from the firebrand intensity of some, to the cool, reasoned arguments of others. One of the most important themes of oral advocacy, according to Kagan, is to match one’s advocacy style to one’s own personality.
Following her conversation with Morrison, Kagan joined Judge Thomas B. Griffith of the United States Court of Appeals for the D.C. Circuit and Judge William A. Fletcher of the United States Court of Appeals for the 9th Circuit in hearing the final arguments of NYU Law Moot Court Board’s Marden Competition.
Editor’s Note: An earlier version of this article misstated Justice Kagan’s clerkship on the Supreme Court. She clerked for Justice Thurgood Marshall, not Justice Clarence Thomas.