National Conference of Bankruptcy Judges--10/15/11--A Conversation With Elena Kagan

The National Conference of Bankruptcy Judges concluded with an interview of Supreme Court Justice Elena Kagan by Third Circuit Judge Marjorie Rendell and Bankruptcy Judge Randall Dunn. Justice Kagan was very humble and self-effacing, but was not overly forthcoming.

In an ironic twist, Justice Kagan took the Supreme Court bench with no expertise in bankruptcy, but her maiden opinion was in that area. She said she enjoyed her work on Ransom v. FIA Card Services. She said, “Everything is new. You learn a lot. I would be glad to do more (bankruptcy cases).”

She said that her service as Solicitor General was good preparation for the court because “the whole job is focused on the court.” However, she did admit that she felt funny being referred to as “General Kagan” during her prior job. She said, “It’s an embarrassing thing because you’re not a General.”

Justice Kagan acknowledged that despite having four law clerks and hearing only about 80 cases a year, the job was challenging. “All of the cases we get are hard. It’s such a different kind of judging.” She also said, “The whole thing’s difficult. It should be difficult. If you thought it was easy, you shouldn’t be doing it.”

She said that she had not yet developed a judicial philosophy. “I’m not a grand theoretical thinker, especially at this stage in my judicial career. I’m ready to take it a case at a time.”

Justice Kagan distinguished Constitutional interpretation from statutory interpretation. She said, “Statutory interpretation is frequently different from Constitutional interpretation because the Constitution is written so much more broadly and is so open-ended so it’s hard to approach it like you would the Bankruptcy Code.” In statutory interpretation, she said, “Start with the text, the particular provision in context, its purpose. Sometimes when the text is uncertain you move to more general purposive principles and legislative history. Congress wrote what it wrote and you have to follow that.”

When asked about the fact that there are three women on the court, she stated that “there are women’s faces and women’s voices coming from all over. We’re not shrinking violets.” However, she said that the female presence on the court “makes a world of difference in the perception of the court,” but “doesn’t make much difference in deliberations.”

She said that she was surprised that technology had passed the internal workings of the court by. She said that the justices do not email each other. She said that “coming back to the court after twenty-five years after being a clerk, they communicate in exactly the same way.” She spoke about memos written on heavy paper transmitted by messengers. However, she saw advantages in not using email. “How many times have you written an email, pressed send and then thought better of it. . . . The way we communicate, even though it’s less modern, there’s a certain deliberateness and thoughtfulness to it.”

Justice Kagan compared writing an opinion to teaching a class. She said, “”I’ve become aware that when I sit down to write an opinion it is the same as when I tried to prepare for a class. You explain something complicated to someone who doesn’t know much about it. You try to convey complex ideas so they understand it and it sticks with them.”

When it comes to questions in oral argument, she said, “We are an incredibly hot bench now. We have a lot to say. Odds that you will get no more than two or three sentences out are not great.” She said that she tries to “ask questions that they can actually answer.” She said that in asking questions, she looks at “what are the hang-ups in the person’s case for me. I want to give someone a chance to convince me.” Other times she asks questions to “convey views to the other people on the bench.”

Justice Kagan said that briefs are more important than oral argument, although oral argument “can crystallize things for you.”

Despite the ideological divide on the court, she said, “We all really like each other very much. We have lunch together every day we have argument or conference.” She pointed out that the closest friends on the court were Justices Ruth Bader Ginsburg and Antonin Scalia. She said, “Disagreements about how to do law shouldn’t carry over into the next case or into general relationships.” She said “I have eight great friends that I didn’t have before.”

On a completely random note, putting spellchecker in text messaging is not helpful. When my dad called me during this presentation, I texted him back to let him know that I couldn’t talk because I was listening to Supreme Court Justice Kagan. After I hit send, I realized to my horror that I had referred to Justice Pagan. I don’t think that Android has a right wing bias. I just think its artificial intelligence doesn’t know when to shut up