The student editors of the New York University Annual Survey of American Law dedicated the 78th volume of the journal to US Supreme Court Justice Elena Kagan. This year’s dedication ceremony, held virtually on March 9, featured six speakers from different facets of Kagan’s career, which has included stints as associate White House counsel in the Clinton administration, dean of Harvard Law School, and US solicitor general.
Each speaker described the qualities that make Kagan an effective justice and an extraordinary legal mind. A strong theme throughout was her dedication to finding solutions through consensus and to strengthening the institutions of which she has been a part.
Selected remarks from the event:
Chief Judge Sri Srinivasan, US Court of Appeals for the District of Columbia Circuit: “Even if we assume the acuteness of the insights and the skillful ordering of communicating them that characterize a Kagan opinion, there’s still something more that’s markedly distinctive about her presentation. It lies in the particular way the points are conveyed, the specific word choices, and the interposition of just the right overarching themes in just the right way…. When reading a Kagan opinion, you never need to double back to reread a point, nor are you tempted to skip forward.” (video 11:05)
John Manning, dean of Harvard Law School: “In statutory cases, Justice Kagan’s sense of the institution leads her to an admirable instinct for judicial self-denial, something that does not always come easily to judges. She knows that sometimes her job is to enforce policies that are clearly wrong-headed but also clearly expressed in the statute she’s reading…. We as a society come together, we devise a set of institutions and processes to help us resolve our disputes peacefully, and we agree in advance to abide by the outcomes of those processes, even if we don’t like all of them. That, to me, is the essence of the rule of law, and that is why the deep integrity of Justice Kagan’s institutional approach is critically important always, and especially in a time when the world is so polarized and divided.” (video 20:13)
Judge David Barron, US Court of Appeals for the First Circuit: “I’ve come to witness the admiration she has engendered at every stage, and also the deep devotion she has—a kind of faith, you might even say—in every institution she has touched. It’s an admiration born of her commitment to each of those institutions—to their traditions, their integrity—but also very much to an honest appraisal of their shortcomings and limitations, of their need to adapt and change, to grow and to improve, to become better than they were or are.” (video 30:26)
Yaira Dubin, counsel at O’Melveny & Myers and adjunct professor at NYU Law: “I recently watched a documentary called The Last Dance, and I thought what one naturally thinks when watching a documentary about Michael Jordan: this reminds me of Justice Kagan…. The key insight of The Last Dance is how rare it is for someone gifted with off-the-charts talent to also have an off-the-charts work ethic…. The reality is she could get away with far less. If she scribbled a draft of an opinion on a napkin, it would undoubtedly be exceptional. But she would never be satisfied with that. She has to give you her very best all the time…. It shows, perhaps most of all, in her opinions. They are worked and reworked to perfection, from the structure down to the last word. They follow a logic that seems natural, even inevitable, so that by the time she has reached her conclusion, the reader is right there with her, as though it were obvious all along.” (video 42:29)
Richard Pildes, Sudler Family Professor of Constitutional Law: “Justice Kagan is a stereotype-defying, wholly unique person with the strength of character to present herself to the world in the way she chooses, regardless of what people think someone like her ought to be. Those qualities of Elena’s were on display for the world in the most memorable moment of her confirmation hearing, in which she undoubtedly freaked out the White House by going completely off-script in response to Senator Lindsey Graham, who asked her, ‘Where were you at Christmas?’ The question was meant to be a prelude to asking her about a terrorism attack that had occurred on Christmas. But as many of you know, Elena responded, ‘Like all Jews, I was probably at a Chinese restaurant.’ In that moment before the Senate, her characteristically quick wit and infectious laughter won over the senators, but I want to comment on a deeper aspect of that moment. Many American Jews are uncomfortable, for various reasons, talking about their Jewishness in public settings, let alone in front of millions of people in one of the most important moments of their lives. But Elena wears who she is easily, comfortably, and in that moment, she made Jews across America feel recognized, dignified, proud.” (video 51:34)
Professor Martha Minow, Harvard Law School: “While a professor at Harvard, [Kagan’s] research on administrative law and executive power integrated political science, legal doctrine, and on-the-ground know-how, the award-winning scholarship as magisterial as it is influential. As Dean Kagan, she brought the qualities of rigor, fearlessness, and imagination to become one of the great deans of the school’s over-200-year history. She demanded excellence, evidence, and the very best from everyone. As her successor, I heard more than once that working for Dean Kagan upped the game for the faculty and the staff. She held no one to high standards more than herself…. Her deanship was transformative on all dimensions. The lodestar for Dean Kagan was putting students, for the first time, as the most cherished center of the school.” (video 1:00:53)
Elena Kagan: “A pretty deep question for a judge is where you seek consensus and where you get off and speak your mind…in a powerful way that takes the majority to task. Every year on this court I ask myself how to think about those two roles of a judge, and whether over time they change, or how they relate to each other.” (video 1:09:33)
“If there is anybody in the legal academy who I feel best about when they say, ‘Oh, that was a good opinion,’ I think Rick Pildes is that person, because Rick is so damned hard to please, and he has such high standards, and he sort of knows everything about a variety of things, but especially about areas, as he said, that I write in a good deal. And for me, when Rick Pildes looks at one of my election opinions, campaign finance, voting rights, I always want his feedback. I want his criticism. I want him to tell me where I’ve gone wrong. But when he tells me, ‘Oh, you got that right, and that was a good job that you did,’ it just makes my day. So I will try to live up to his own concern for democracy and his own attempt to protect the structure of our democratic system.” (video 1:20:40)
Watch the full video of the event:
Posted March 30, 2021