Justice Elena Kagan clerked for two legal legends after she graduated from law school, First, she clerked for Judge Abner Mikva of the United States Court of Appeals for the District of Columbia, and she then went on to clerk for Justice Thurgood Marshall on the United States Supreme Court. During her visit to Chicago-Kent College of Law in October, Justice Kagan talked about those experiences. She noted that Judge Mikva worked in top positions in all three branches of government — before he was a judge, he was a Member of Congress from the Chicago area and he went on to be White House Counsel during the Clinton Administration. Clerking for Judge Mikva. Because of Judge Mikva’s “subtle and penetrating understanding” about government, Kagan herself became “very intrigued by” government and the way it operates. Moreover, she was exposed to fascinating cases because on the D.C. Circuit, where Mikva sat, “the most important cases are about the way government operates.” Personally, Justice Kagan continued, Judge Mikva, was “a wonderful human being” who taught her about the importance of finding good mentors, and she has tried to be a good mentor herself.
When Justice Kagan discussed her time clerking for Justice Marshall, she called him the “the greatest lawyer of the 20th century.” She described him as “just an extraordinary lawyer,” who “decade in and decade out” worked to advance justice. Justice Kagan not only sang his praises in the legal arena but also highlighted his incredible storytelling ability — he could “make you laugh [and] make you cry” in the same story. Justice Kagan noted that she clerked for Justice Marshall toward the end of his career when he was taking stock of his time on the Court which added to it being “an extraordinary experience.” It gave her a “window into some of the most important parts of twentieth century history.”
Justice Kagan has written and spoken about her time with Justice Marshall elsewhere as well. Marshall nicknamed Justice Kagan (who is 5’3”) “Shorty” and “Little Bits.” Marshall stood at 6’2”. Marshall also once called Justice Kagan a “knucklehead,” (a term he frequently called his clerks) when he tasked her with writing a dissent and she told him it would be difficult to find a legal basis to find in favor of the party that he wanted to support.
At the time of Kagan’s clerkship in 1988, the Supreme Court, under Chief Justice Rehnquist’s leadership, was becoming increasingly conservative, so Marshall was “looking for really bright people to kind of put a new charge in him” Marshall biographer Juan Williams was quoted as saying in the New York Times. But that did not mean that Justice Kagan was a clone of Justice Marshall. Indeed, during her 2009 Solicitor General confirmation hearing and later in her 2010 Supreme Court confirmation hearings, Justice Kagan explained that the writings she produced for Marshall reflected her efforts “channel” Justice Marshall. In the latter hearings, she said:
“When I was clerking for Justice Marshall, I was 27 years old, and Justice Marshall was an 80-year-old icon, a lion of the law. … The role of the clerks was to channel Justice Marshall to try to figure out whether Justice Marshall would want to take a case, whether Justice Marshall would think that the case is an appropriate one, and that’s what I did.…I love Justice Marshall; he did an enormous amount for me. If you confirm me you will get Justice Kagan.”
This post was drafted by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018. It was overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.