April 10, 2011
In a relaxed and often-humorous conversation before a packed room of more than 750 of their fellow Harvard Law School alumni, U.S. Supreme Court Associate Justices Anthony M. Kennedy ’61 and Elena Kagan ’86 on Saturday shared personal stories and offered a rare glimpse into the Court’s very private world, in a special reunion event moderated by HLS Dean Martha Minow.
“A Conversation with the Justices: The Honorable Anthony M. Kennedy ’61 and the Honorable Elena Kagan ’86,” helped draw one of the largest gatherings of alumni ever to attend an HLS reunion, said Steven Oliveira, Associate Dean and Dean for Development and Alumni Relations. Numbers for the reunion were already running higher than usual when the event was announced, spurring tremendous response, he said. The reunion – for the classes of ’61, ’71, ’76, ’86, ’01 and ’06 – marked the 50th HLS reunion for Justice Kennedy and the 25th for Justice Kagan, who also served as the very popular Dean of HLS from 2003 to 2009 before being named U.S. Solicitor General by President Barack Obama '91, and then named by the president to the high court last year.
The event, held in the ballroom of the Charles Hotel, began with a presentation to Justice Kennedy of the Harvard Law School Association Award, established in 1992 to honor alumni who have shown exemplary service to the legal profession, society and HLS. In presenting the award, whose former recipients include former HLS Dean Erwin Griswold ’28, S.J.D. ’29, U.S. Supreme Court Justice Harry Blackmun ‘32, and President Obama, HLSA President Sharon E. Jones ’82 called Kennedy an admired and influential justice who has shown tireless and distinguished commitment to public service at the highest levels.
|Justice Anthony M. Kennedy '61 with HLSA President Sharon E. Jones '82 and HLS Dean Martha Minow|
In accepting the award, Kennedy took the opportunity to note that the law has a language of its own, with a peculiar grammar, aesthetic, formality and rationality that unites lawyers across generations and geography with a common purpose. He asked the audience to consider whether political discourse in the U.S. has become too fractious, and suggested that the Class of ’61 make it a special cause to ask everyone, including politicians, to behave in a more civilized manner so that the U.S. continues to serve as a model for principled democracy.
Praising HLS Professor Noah Feldman’s new book, “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices,” Kennedy said the book presents an object lesson on how justices should behave. He added that judges have an obligation to put aside personalities to do their jobs well, and urged HLS alumni to ensure that the law is exemplary and effective in underwriting a society that is compassionate, tolerant, strong, and free.
In introducing Kagan to the audience – many of whom were Kagan’s classmates, students, or attended the school when she was dean – Dean Minow noted her career trajectory from HLS student to clerk to U.S. Supreme Court Justice Thurgood Marshall to serving in the Clinton White House to HLS Professor and then its first woman dean, before becoming Solicitor General and then Associate Justice. To laughter from the audience and Kagan herself, Minow teased her predecessor for finally landing a job she might stick with for a while.
As junior justice on the high court, Kagan – renowned for her sense of humor – noted she has several responsibilities, including taking notes in conferences since there are no outside parties present and answering the door, which she is forced to do frequently since a number of justices – with the exception of Kennedy, she emphasized – had the habit of leaving their eyeglasses, cups of coffee, and other items in their offices, necessitating frequent interruptions by staff. With a smile, Kagan added – to loud laughter from the audience – that she also serves on the high court’s cafeteria committee. Just as she was known as HLS’s “coffee dean” for having instituted free coffee for students, she expected her legacy on the court to include the title of frozen yogurt justice.
The junior justice is always the last to speak during conferences, Kennedy said, and when he was in that position he decided he would be more effective if he stood up while sharing his analysis of cases with his brethren. Before he had a chance to try it out, fate fortunately intervened: he was walking with Justice William J. Brennan Jr. ’31 to a conference when Brennan recalled that Justice Felix Frankfurter ’06 would stand and lecture during conferences, which Brennan found annoying. Kennedy, of course, decided to stay seated.
Even when more serious topics were addressed during the hour-plus discussion, the tone remained intimate and light-hearted, as Minow and then alumni posed questions to Kennedy and Kagan. Noting the controversial nature of the question, Minow asked whether the laws of other nations should be cited by the U.S. Supreme Court, something for which Kennedy has been criticized by certain groups. To loud applause from the audience, Kennedy said there was a certain Know-Nothing aspect to this criticism, and argued that a scientist would not be reviled for referring to relevant scientific studies from other countries. While the laws of other jurisdictions are not binding, he emphasized, they can serve a useful purpose in examining approaches to legal problems.
Responding to a question posed by an audience member about the glass ceiling for professional women, Kagan said the court, now with three female justices, does not seem to have such a constraint, and said that former Justice Sandra Day O’Connor had made a similar observation when visiting the court this year.
Because she served as Solicitor General for more than a year, arguing cases on behalf of the U.S., Kagan has had to recuse herself from a large number of cases on this year's court docket, she said, leading her colleagues to tease her about how she spends her time when they are working. The court has only had one 4-4 split despite the 35 or so cases it has addressed this year, so she has not been needed much as a tie-breaker, Kagan joked, but later added that her position as Solicitor General gave her an ideal platform from which to observe the court in operation.
Minow asked whether 5-4 decisions are good or bad for the court and country; Kennedy responded that split decisions should come as no surprise, since lack of clarity or consensus in the lower courts is the very reason the high court takes cases. Rather than unanimity, it’s more important to have a rationale for the decision that the majority agrees upon, he said.
In response to Minow’s question about the public educative value of Supreme Court decisions, Kennedy told a story about eating a meal with his family at a restaurant in his home state, California, shortly after the court’s highly controversial 1989 decision in Texas v. Johnson, which held, 5-4, that burning the U.S. flag is protected speech under the First Amendment. A lawyer approached Kennedy in the restaurant to discuss the case. He said his own father had been a P.O.W. for three years in Germany during WWII, and, with his fellow soldiers, used to sew together tiny bits of red, white, and blue fabric to create American flags before guards would confiscate them. After the court’s flag-burning decision, his father told him he should be ashamed to be a lawyer. The lawyer then gave his father a copy of Kennedy’s concurring opinion in Texas v. Johnson; after reading it, the father changed his mind and said his son should be proud to be a lawyer.
When Kennedy was appointed by President Ronald Reagan in 1987, the Supreme Court heard about 150 cases a year, which was too many, he said. Now it hears about 80 or 90, which he feels is too few, adding that the optimal would be about 100 to 110. He said that he and Justice Stephen Breyer ’64 believe that half an hour is not enough time for oral argument and would like to see the time limit extended by 10 or 15 minutes. Both Kennedy and Kagan agreed that oral argument can affect their decisions, with Kennedy adding that an excellent appellate argument is more like a quiet discussion of a doctoral thesis than an impassioned, Clarence Darrow-like jury argument.
Asked by Minow about favorite moments as students at HLS, Kagan smiled broadly and said that Minow was her favorite professor. Noting that she herself had loved HLS even during a period, the mid-80s, which are not generally remembered as the school's high point, Kagan spoke about the importance to her, as dean, of creating a student-centered atmosphere, and that she is delighted at the exceptional job Minow is doing as her successor.
Kennedy described landing two coveted Red Sox tickets during Ted Williams’ final season as a player. The game was the day before the exam in federal tax, and Kennedy and a classmate decided to bring the tax code with them to study. As they watched the game in the stands, they suddenly heard a baritone voice admonish them that they should not bring the tax code to Fenway, and they turned to see Erwin Griswold. To hearty laughter from the audience, Kennedy said he never figured out whether Griswold thought his action had sullied the code – or baseball.
Dozens of alumni stayed after the discussion to talk with Kagan and Kennedy, who stayed for another 15 minutes to greet old friends and colleagues and accept the good wishes of audience members.