The audience listens as U.S. Supreme Court Justice Elena Kagan talks with Northwestern University School of Law students Tuesday at the school’s Thorne Auditorium. More photos»
The audience listens as U.S. Supreme Court Justice Elena Kagan talks with Northwestern University School of Law students Tuesday at the school’s Thorne Auditorium. More photos»Ben Speckmann
U.S. Supreme Court Justice Elena Kagan came to Northwestern University School of Law for a conversation with Dean Daniel B. Rodriguez and a Q-and-A with students Tuesday at the school’s Thorne Auditorium.
U.S. Supreme Court Justice Elena Kagan came to Northwestern University School of Law for a conversation with Dean Daniel B. Rodriguez and a Q-and-A with students Tuesday at the school’s Thorne Auditorium. — Ben Speckmann

Elena Kagan warns her clerks right away. They have the worst job in the building, she tells them. They’re going to have to write a draft of her opinions, but the public won’t ever see them.

Instead, the U.S. Supreme Court justice will read their opinions to inform her thought process, then open a new document and write every word of the opinion herself.

“I’ve had clerks who are great writers, but they are not writers who sound like me,” she said. “I want a Kagan opinion to sound like a Kagan opinion.”

Kagan’s writing habits were among the tidbits offered Tuesday during a discussion and Q-and-A session at Northwestern University School of Law attended by about 700 people.

Dean Daniel B. Rodriguez kicked off her speaking engagement by stating he wouldn’t ask her about the news she made Monday at The University of Chicago Institute of Politics regarding cameras in the high court. Kagan said she’s now reconsidering her opinion on the issue, after endorsing the idea during her time as solicitor general.

She spoke about nearly everything else.

The conversation opened with Kagan’s hunting trips with her fellow justice, Antonin G. Scalia, and touched on experiences at the State of the Union, her heroes Abner J. Mikva and Thurgood Marshall for whom she clerked — calling Marshall “the greatest lawyer of the 20th century” — her critiques of the high court, the value of friend-of-the-court briefs and the state of legal education.

Kagan, the former dean of Harvard Law School, joked that she “knew when to get out.” She served in that role from 2003 to 2009 — an era she characterized as “the boom years” for law schools.

She acknowledged that she only worked at one school, which itself is only “one type of school,” but added that she would like to see multiple models of legal education.

“The idea of everybody charging the same amount, everybody trying to give the same kind of education, seems not a sensible one to me,” she said.

“There ought to be different ways of providing a legal education that reflects who the market for your students are and that is reflected in the kind of tuition you charge. I never understood why the elite law school model was the only one.”

Similarly, Kagan said she believed there shouldn’t be a one-size-fits-all model when it comes to what types of attorneys handle Supreme Court cases.

“There can be really terrific lawyers who just aren’t really appellate lawyers and aren’t Supreme Court lawyers,” she said.

The difference between excelling as a trial lawyer and an appellate lawyer can be vast, she said, “especially at the Supreme Court.”

“We are a really hot bench,” she said. “We bombard people with questions. We barely let them have a chance to talk. And in order to break through with an argument on this court, you have to be a lawyer of very special and specialized skills.”

Because of that, Kagan said, she is fine with a system in which Supreme Court advocacy becomes a niche talent.

“Good lawyering helps for better decision-making,” she said.

And though there is, she said, a disparity in available advocacy, she complimented law firms and law school clinics for providing quality pro bono representation.

She had only one concern regarding that disparity. Criminal defense lawyers who see their case all the way to the Supreme Court too often want to argue it themselves rather than retaining an experienced member of the high court bar.

The quality of friend-of-the-court briefs, like Supreme Court lawyers, “runs the gamut,” Kagan said. She assigns the duty of reading briefs — sometimes up to 50 on a case — to her clerks, who then inform her of the usefulness of each.

To Kagan, useful briefs are ones that either serve as a substitute for a poorly written lawyer brief or that provide either a “more practical, on-the-ground sense of what different decisions are” or a different “theoretical component.”

Kagan was speaking as part of the Howard J. Trienens Visiting Judicial Scholar Program, named after the Northwestern law alumnus and Sidley, Austin LLP partner.

In 1990, William H. Rehnquist was the first of now eight Supreme Court justices to appear as part of the series, followed over the years by John Paul Stevens, Sandra Day O’Connor, John G. Roberts Jr., Anthony M. Kennedy, Ruth Bader Ginsburg and Sonia M. Sotomayor.

After the event, audience members gathered in the school’s atrium for food and drinks, talking about Kagan’s speech.

First-year student Yewande Gilbert came so she could see what Kagan was like in person, both specifically to see the justice and more generally to begin acclimating herself to judges in preparation for future clerkships.

“It was good to see what she was like as someone not just in a black robe behind the podium,” Gilbert said. “She was a real person. And her experiences were very relevant to me as a law student.”

Fellow first-year student Shade Anozie said she was inspired seeing a female justice and was also interested in the distinctions Kagan made between trial and appellate advocacy.

“You would think that because you went to law school and you had that experience, you can go to the Supreme Court (and argue),” Anozie said. “And she’s like, ‘No.’ You have to actually develop a specific type of skill to actually present to the Supreme Court.”

If Gilbert, Anozie or other law students were looking for life or career advice from the justice, they found it when one student requested it during the Q-and-A session following the discussion.

Kagan’s response? Be yourself.

“I tend to think that law students are too risk-averse,” the justice said. “I tend to think that law students too much do whatever they think the next thing to do is, are too afraid of closing doors behind them, are too willing to do things just because all the rest of their classmates are doing them.

“And that’s not to cast aspersion on law students. I’m sure I was exactly the same way. And, of course, not all law students are like that.

“But I guess to the extent that I have any useful advice to give, it’s to do what moves you, to follow your path, to find the jobs that are going to make you wake up in the morning whistling and ready to go to work.”