Supreme Court Justice Kagan says criticism Court code conduct lacking enforcement mechanism “fair"

[Applause] thank you thank you judge Mia you didn't let me thank you up here ran away too fast thank you chief judge margia and good morning everyone and thank you so much Justice Ken for being here another warm welcome and we appreciate so much that you've agreed to join us in conversation today that's why I come to listen to judge Mia's introductions it was beautiful all right I'm GNA ask the first question which is that when we kicked off our our our our conference on Monday we had an opening ceremony where we gave a tribute to Justice sander de o Conor um I think we all really enjoyed hearing about her and listening to her in her own words but I'm wondering you know she was our circuit Justice when she was sitting in this chair yeah pretty much exactly so we we're recording this for posterity uhhuh okay but you're going to play it when exactly you can let us [Laughter] know so Justice or Conor she was our circuit Justice for many years um but I'm wondering if you can share with us some of the reflections you might have about her impact on you personally and on the court um uh what a great question to open with I mean I didn't know her very well personally she was a Justice when I clerked on the court she had been there already about 5 years but I didn't get to know her very well a little bit um I could have gotten to know her better Justice OK ran a legendary um all women's exercise class at the court to which all female clerks there weren't many of us at the time were invited but I thought that it was too Namby pambi for my tastes and uh so I played basketball upstairs my um my the only conversation I remember with Justice OK Conor from that year was when I um badly sprained my ankle playing basketball and I was walking around on crutches for a couple of weeks and one day I was hob Ling this way uh down the hall and she was coming that way down the hall and she stopped me and she said what happened and I said well I sprained my ankle playing basketball and she said very sadly she was sort of shaking her head and said it wouldn't have happened in exercise class um uh she was very kind to me always especially when I became solicitor general um I remember a conversation where she called me and she congratulated me and we spoke a little bit about being first women uh she of course was the first Supreme Court Justice and I was the first woman solicitor general and um uh that's a conversation I'll always remember um uh but um that that was about it and then I I guess the the last is when I was uh Dean at at Harvard we had justice o Conor come to this school on a couple of different occasions and what I really think about Justice oconor and her role in the court I think I said best back then I uh introduced her at one event you know to the entire student body and what I think about Justice OK Conor I think she was a magnificent Justice and um um and and what I the reason why I I don't think uh I'll be able to improve on so I'll just repeat what I said back then which is if you think about Justice OK Conor's role on the court I mean was she was so extraordinarily important for so long long and if you think about it um suppose that somebody said to you the way we're going to run our country is we're going to put a very large share of the really important questions that people care most about and we're going to give them to the courts and ultimately to the Supreme Court of the United States and then on that Court it just so happens that really only one person is going to decide the issue because you know there are four people on this side and four people on that side and then it all just depends on what one person thinks and if you said that's the way we decide the most important legal questions which are often the most important questions in our country what would you think of that system of governance you would say well that's insane right that's that's a Preposterous way to uh do decision making um but it worked brilliantly for the better part of two decades and it worked brilliantly because Justice OK Conor was Justice o Conor because uh she was like the best possible decision maker you could hope for uh the person who brought the most common sense the most judgment the most wisdom to that role of making decisions and I I think it was um I I think I don't know where it came from whether it was because she was not only a lawyer but she was in politics for some part of her life or whether it just was part of her DNA a but she had this innate feel for the country um for uh its history and traditions for its core principles and for the people who made it up most of all for the people who made it up in all their uh commonalities and all their divisions and and that led her to be able to um you know just have this pitch perfect sense of uh when the Supreme Court should intervene and and uh and how the Supreme Court should intervene and over and over again on these really difficult questions she sort of found the right place to be for the court you know a place where there was some balance where there was some moderation where there was some sense of compromise and I don't you know I mean it wouldn't be right to say that everybody agreed with everybody with every decision she made that's that's obviously not the case but because of her decision- making in that time I mean I think people generally had an a deep reservoir of respect for the court and what better thing can you say about a judge who's put in this incredibly important decision-making position than that that she left the court a better more respected institution than she found it and because of that left the country in a better and more respected uh place thank you for that reflection we we heard her speak on the from the recording of when you the poem of pulling your hand out of the water and when does it fill up it obviously hasn't filled up yet um so that's a lovely story uh the court agreed to uh hear 62 cases in the last term markedly different from uh the past uh issued 60 opinions 11 of those came from the ninth circuit you authored seven opinions was this a typical year for you and how does this compare to your previous terms so uh 11 from the ninth circuit I think the ninth circuit has sorry been eclipsed by the fifth circuit um seven opinions seven opinions for me did you say uh uh that was seven majority opinions um more and more I do not Define What I Do by the number of majority opinions I write I I also count those Des sents yeah we'll get to that um about 60 cases is that what you said 60 yeah 60 opinions sometimes when um sometimes I say to my clerks you know this is one of these like when I was a girl I walked 20 miles to school Barefoot kind kind of comments well when I was a clerk um we had 140 cases so I say this to them it's like you think you're working hard forget it you don't know what hard work is um uh so 140 and 60 are pretty different even when I got to the court I got to the court about 15 years ago now I I think we were at about 75 so there's been some slippage even in that time uh and yet I will tell you I mean in different people have different theories about why this decline has happened and nobody knows and I won't get into that but even so I mean it's not withstanding what I joke about with my clerk I don't feel as though we're working less hard I feel as though I'm working plenty hard and certainly as hard as when I got to the court 15 years ago even though there has been a slippage in the total number of argued cases and uh the reason is we do like all this emergency work now that we didn't do 15 years ago it really started during the Trump Administration and has continued as much as ever during the Biden Administration with all these different challenges to administrative action of various kinds and because we've we granted a number of them in in the uh early years of the Trump Administration I think it encouraged people to keep bringing these kinds of petitions for um emergency uh relief from us so I got back in fact to my room yesterday and I have four new clerks now and and the thing about new clerks is they always write you more than you actually want to know and so uh so my four clerks wrote me about four separate emergencies that are at the court uh right now and these you know some of them deserving of long memo some you know possibly not but um uh but it was just like our summers used to be actually Summers uh it was one of the great things about our calendar was that it was spaced out so that we would have a break before we sort of went back to the hot House of decision making and um just the the uh Relentless uh uh you know bringing of these emergency petitions um makes that not the case anymore um so you know you might say well why are you doing so many of them and that's a that's a good question um and sometimes we shouldn't and and I think probably we've gotten into a pattern where where um we're doing too many of them and encouraging more of these kinds of petitions to be brought because of that um you know there was one uh uh petition that we granted this year which we ended up dismissing as improvidently granted after it was from the 9th circuit some of you will know remember what it was after we realized that the case was really much too preliminary for us to review and that maybe is a good lesson for us to sort of say as to some of these emergency petitions no tooo soon too early let the process play out but on the other hand um it's it's hard to say that with respect to everything especially when district courts are granting Nationwide injunctions which can stop a program an important administrative program in its tracks if you really let the process play out for years and years you know until the presidential term is completed or something before um the SU Su Court would get a chance to review it so it's a very difficult question as to how exactly uh we should approach these ever increasing number of emergency petitions but more and more it's um it's it's it's not only the argu cases but that work that is the Supreme Court's docket well and as a followup the a lot of the decisions happened it seems like the big decisions happened at the end of the term uh including going into July which is uh not uh a common occurrence can you comment a bit on the Dynamics of how that came to pass yeah we did go into July I mean we only went a few days into July so I think we were about a week behind what we've mostly been and uh maybe we had a um a few more decisions or a few more important decisions at the end but I think that this has become sort of a regular occurrence is that we drop a lot of important decisions near the end whether the end is the end of June or whether it's as it was this year the beginning of July and and I do want to say that as to that you know I read at the end of every year all these theories about how we've sort of planned it this way and um you know what I would say are sort a little bit conspiracy theories and the truth of the matter truly you know this is really truly the case is that we announce decisions when they're done um I mean sometimes we'll say okay we have five decisions let's do two on Monday and you know three on Thursday just to space them out a little bit especially for the Press but really our Rule and I I don't remember any exceptions to this is that a decision is sent down when it's when everybody's done all their writing and everybody has voted um uh as to why there are so many of the important ones come at the end one part of it is a little bit unfathomable to me which is for whatever reason we seem to get a lot of C petitions that we take at a time of the year where um arguments are scheduled in March and April and those cases are just not realistically going to come down until the end of June and in fact even that is is very it's a very crunched time period just as guch has told me when he clerked on the court he clerked for justice Kennedy but also for retired Justice white and he tells me that Justice White had this expression when when Justice Gorsuch would go to him and say this is just a terrible opinion I can't make heads or Tales of it I don't know what it means he would say was it an April case um you know something that was argued in April and you know Justice White's view was that we did our worst work um in those sort of March April cases and I think that that's you know probably right that if you have a really important case argued in April it's just hard to uh you know you know one where there are multiple opinions it's just hard for everybody to do quality work in that period of time try as we do and I think we all do try um I mean the other reason why we end up deciding a lot of stuff late or handing down a lot of stuff late is just even when you have the big cases that are argued earlier that are argued in the fall you know those big cases often involve a lot of people writing and not not even just like it involves a majority and a dissent but um but maybe multiple separate writings whether they're concurrences or dissenting opinions and as we do that just the time it takes gets for you know longer and longer and longer so the example of that this year uh was rahime the gun case um which was the first first big gun case after bruan and it was argued in November and the Chief Justice wrote an opinion and the chief justice is always timely in his opinion drafts and um and eight people ended up joining that opinion you know um Justice Thomas dented but you know that sometimes happens there's a descent but eight people joined the majority opinion um not withstanding that there were six opinions I mean then Plus it was five opinions okay I'm going to count there was the majority there was The Descent and I believe that there were four uh concurrences um six maybe there were five concurrences here's here uh justice Alo was the only person who neither and props to Justice Alo who neither um uh uh who didn't write and didn't join any separate opinion um I I joined a separate opinion didn't write myself and Justice sod mayor Justice Gorsuch Justice Kavanaugh Justice Barrett and Justice Jackson so that's five um joined the chief's opinion but nonetheless wrote a separate concurrence now that just takes time and every time somebody writes a concurrence somebody else will say well I have to respond to that you know because that says something that I don't agree with um now part of this was I mean it was the first time when the court um was decided to try to tell the world what Bruin meant and it turns out that there are lots of different ideas about what Bruin means uh which we which we were but you know there's something I mean it's like gets to the point where it's like what why don't we just write cotum at some point um but all that uh takes time thank you so on this topic of a lot of separate decisions what does that reflect about the court right now we we don't seem to be able to to uh to coales all that easily on some cases and as I said you know maybe bruan is a special case but in fact there's a lot of this there is a lot of separate writing that the court is doing right now and I'll tell you I have um uh one end of the spectrum view on this and and I know I do um because I just looked at some statistics and it's about different justices and how many separate opinions that they've written so this is not impressionistic for me but I've actually looked at these statistics and I am like right down at the bottom not only on the current court but um uh for like the courts of for a hundred years or something so I think I have an atypical view of this question but um and you if a different Justice were sitting in this chair you would get a different answer but honestly uh I think that um it's a you know it's not a it's not a good thing for the court it um it prevents us I think from giving the kind of guidance that um lower courts have a right to expect that the public has a right to expect it muddies the Waters of our decisions you know in a case like rahime it's like okay well the Chief Justice decided something but you know everybody has a slightly different take not only on bruan but on what the Chief Justice said every body sort of tries to spin it one way or another way um uh often people uh use separate opinions to pred decide issues that aren't properly before the court and that you know may come before the court in a year or two and sort of to try to uh give signals as to how lower courts should decide that which I don't think is right I think that the way it should work as the lower courts should decide it and then we should decide it um uh so I mean there are definitely times where separate opinions make sense uh you know I say this I actually did write one this year so I have to think that there are some times where a concurrence uh makes sense even though you're joining or or a separate concurrence but I think that there are times where um you know it it just should not be the case that somebody says I would not have written the opinion in just that way I would have written it somewh differently so I'll give everybody sort of the benefit of my thoughts about this you know by way of a concurrence I I mean I think all the time we're in a position where we look at a majority opinion and we say not the way I would have written it but I think we should have a higher threshold for saying but it's you know it's it will do it's okay enough I agree with it enough and the world doesn't have to hear you know doesn't need to hear my separate thoughts on like a better opinion that could have been written because as I said I think it's it just um uh that kind of sort of you know five different justices tell you five different views of why a case came out the way it did um it it it it it uh I don't know how lower courts are supposed to deal with that really I mean mostly I think they should deal with it by ignoring the concurrences well let's move to descents so historically reading descents From the Bench uh is an indication of strong disagreement among the justices and this term there were a number of descents read from the bench including you you read um yours in ler break case in addition there were news reports of one of your fellow justices and and she said um that she felt desperation to the point of crying when some of the major case decisions were announced and I'm wondering if you can um tell us about what do those things tell us about the court right now I guess that we have some strong disagreements um I mean um you know I'm not much of a crier myself uh could happen uh but uh you know uh you know I I think you're talking about just as so to my your's comments and um you know I I I get where the frustration comes from from I'm more of a wall Slammer you know come come back to my room and punch you know yeah um uh you know I'll just speak for me I and look there are uh multi-member courts are going to have disagreements and everybody of course likes to get their way all the time um and uh everybody uh feels some measure of disappointment or frustration when they don't um I mean for me where I feel the most frustration or disappointment or sadness or what or or you know you know uh wall slamming urge um uh is where um you know the the dis the disagreement Rises to some significant level of importance of course you know we we all have disagreements we all right to sense which are like well that's nice you know there are two ways of looking at this but it's not earth shattering ly important but of course some of the cases that we do um are really of great uh importance and and and then I would say something in addition to that which is if you feel as though the court majority did not play by the rules of the game and when I say game here of course it's not a game um you know when when it's didn't sort of play by the rules of the judicial Enterprise uh then I think you know one is uh you know or I am uh uh frustrated and uh saddened by that and what I take that to mean is you know that courts should respect precedent except in unusual cases I take it to mean that courts should um respect and adhere to their own methodological commitments um uh regardless of which way it uh they point I take it to me that um courts shouldn't decide more than is properly before them and I take it to mean that courts shouldn't use individual cases as vehicles to advance some broader agenda or some broader project to change our governance structure or our society and you know when you feel as though that is what has happened and hopefully doesn't happen much but um but I think that there have been cases in the last few years in which it has happened uh to my lights at least um then I think you should say so and you said you know reading From the Bench um you know I've read uh well a few years ago when we would have read from the bench on a couple of cases uh it was Co time we we weren't in the court but this year uh read one from the bench Justice soda my Justice soda myor and Justice Jackson uh also read a number um and you know uh that's the reason I have for when I read from the bench that's sort of the criteria I have for when I read from the bench when it's not just a disagreement but when it's a disagreement that um that has that kind of characteristic to it that U tying into that I think that we're all interested in the collegiality on the court and how do you maintain collegiality um so the question is uh uh is collegiality important or maybe what what kind of collegiality is important for the work of the Court uh it is important um but I think you're right to say what kind of because I I get frustrated uh sometimes um when people talk about the collegiality question because they often talk about it as though um what's what the way to measure it is how often we go to the Opera together you know the old um the old story was Justice Scalia and Justice Ginsburg went to the Opera together and that showed that that was a collegial court or that at least those two were collegial and you know um uh we have lunch together I I think for reasons I'll say you know that's important but we talk about some of my colleagues um share a great love of baseball some of my colleagues share a great love of golf um I mean all this is well and good for us it makes our workplace more pleasant like if you hated or your colleagues which we do not you would have a more miserable existence there's a book by Noah Feldman about the 1940s Court which is called scorpions and I mean really they just despised each other and I can't imagine how they went into work every day um so um so that's good for the court but I can't imagine why the public should care if we go to the Opera together or we can talk about baseball together um what the public should care about is if where I'm going to say um collegial although if if the collegiality brings about a certain kind of decision-making process in other words if it leads to people listening to each other in talking about the law and in talking about cases and in making decisions if it leads to people being able to step into each other's shoes and see the world through another person's eyes or see certain legal issues through a different perspective so to the extent that our lunches together for example can make us more see each other as human beings more comfortable with each other and that that leads to better to a better decision-making process in which we're really listening to each other as opposed to just here's my opinion here's my opinion here's my opinion now let's count them up um that's what you should be aiming for um and you know sometimes going to the Opera together might produce that result sometimes not the important thing is not like that it's really like what does the decision-making process look like I mean I suppose the other way in which collegiality figures in a multi-member court is in how we write about each other and um you know when I'm writing an important descent I I don't hold back in terms of you know I I I don't think it's incumbent on me to somehow suppress the disagreement or or um lessen or moderate the disagreement but I do try not to and you know sometimes I'm successful at this and sometimes I'm not I'm by no means holding myself out as like the model here I mean sometimes I read the scents that I've written and years later think I shouldn't have said that um but um you know I try hard uh not to be at homonym not to be personal my own rule of thumb is like I try not to use adjectives when I write desense you know how some people like it's like this is absurd this is radical this is nonsensical so I I try not to use adjectives which um but you can say really powerful things without using adjectives you know just by just by showing that reasoning is is is wrong and that's what I try to do uh in in my desense I have to say where um you all saw Justice Kennedy here a couple of days ago I was really glad that he made it to this conference you know he loved the nin circuit in this city which he loves um uh justice Kennedy was our civility enforcer and I think we miss him Justice Kennedy would get on the phone to people who um whose opinions he had joined and also to people who were on the other side he would do it to both and he would say do you really need to um use that word or use or or or that sentence and because Justice Kennedy never transgressed the bounds of Civility people took it very seriously people didn't think of it as remotely like you're telling that to me you know um uh and um and and they would do what he said and I think we missed that a little bit right the doctrine of Clean Hands is Alive and Well EX um so turning to a uh substantive legal question which is something that has been very much a part of this conference uh which is the demise of the Chevron Doctrine and how how do you see that playing out in Practical terms I think we're everybody's wondering what what the impact of that is and what is that going to look like on the ground for the judges that are in this room yeah I think it's a good question I'm not exactly sure how it's going to play out I mean uh of course everybody in this room knows but for any like C-SPAN observers out there um all three of them um sorry C-SPAN uh you know the Chevron Doctrine is the doctrine that says when a court does all it can to interpret a statute and is still left with some kind of ambiguity or some kind of Gap in the statute um um how who then decides um how to resolve that ambiguity Wier to fill in that Gap what Chevron said was that within the bounds of reasonableness and agency that the court has that the that Congress has the agency Congress has told to administer the statute gets to resolve the ambiguity and gets to fill in the Gap in those circumstances and um in ler bright the court overruled that Doctrine and said no it's for the court to do this like even when there's a ambiguity even when there's a gap after you know there's there's never such a the court can just keep going and uh so the court sort of took the place of agencies um in those circumstances but I think it's actually unclear how it plays out for a a few reasons in other words how big a difference this is going to make I mean the first reason it's it's uh it's not clear what the future brings is that if you look at the analysis although there's some article 3 color in the opinion the analysis is quite clear that the court is doing this as um a statutory holding it's saying that this is what the administrative procedure act requires um and and I think it's analysis makes clear that Congress could change that if Congress wanted to uh in in different parts of the opinion the uh the court goes 99% of the way to saying this and so one reason it's unclear how this plays out is you know Congress might decide to step into these matters I mean the Chevron Doctrine existed for 40 years um and Congress knew all about it uh there was a study done about what congressional drafters know about the Court's interpretive rules and everybody knew about Chevron so everybody understood that the interpretive rule was that the agency was going to be given this Authority and uh Congress never really suggested any disagreement with that uh and that's actually uh you know pretty intuitive I mean Congress gave the agencies the authority to administer the relevant statute Congress presumably thinks that the agencies have expertise in the area Congress presumably thinks that the agencies understand their own regulatory scheme better than the courts do Congress actually has a lot more political control over the agency as well as the n that the president has some uh political control over the agency uh so you know there are all kinds of good reasons why Congress would want the agency rather than a totally detached unaccountable Court to be making this decisions and Congress can do that so that's one reason it's just not clear how this is going to play out was what does Congress do I mean the second reason why it's not clear even in the absence of new congressional action is that the court makes very clear in ler bright the majority does that where Congress really has delegated power to the agency to fill in gaps and to resolve ambiguity then the courts do have to respect that in other words what ler that the ler bright majority says is we're not going to presume that any ambiguity is for the agency to decide we're not going to make this um presumption that Deon made but where we look at a statute and we say no look Congress did delegate this power to the uh agency then the Court's role is to respect that I mean that's why it's quite clear from the agency's from the Court's analysis that this is a statutory decision not a constitutional one and so and then the court the majority gives examples of this so it says for example where um Congress says to the agency do whatever is reasonable or appropriate in a particular area it says that's a delegation to the agency it is not expecting the court to decide what's reasonable or what's appropriate and there there are a number of other examples that the Court gives and so I think a lot of the action in the future is going to be as to well what kind of delegations are we looking at what kind of language suggests a real not a presumed delegation to a agencies to fill in gaps and to resolve ambiguities and I think there's going to be a lot of wrangling on that question the third is the majority makes very clear that although Chevron Defence doesn't applies Skidmore defence does and Skidmore Defence and Chevron Defence um certainly there's a Delta between the two but how large the Delta is is is not at all clear and it um you know Chevron Defence is Skidmore Defence is often said to be uh respect appropriate respect given the ageny expertise and experience in an area to an agency's uh position I don't know appropriate respect can sound pretty near to difference um when you think that the agency really does have the kind of experience the kind of expertise that matters in a given area so so I think that there's going to be a lot of uncertainty and a lot of instability on that front as well I think for some judges in some circumstances Skidmore Defence is going to look pretty darn close to Chevron Defence and for other judges for other circumstances it's not going to look so close to Chevron Defence so there's going to be some disagreement there um you know the one of the reasons that the uh ler Court said said that it was entitled to overrule Chevron was because there was disagreement in the way Chevron was applied um and what it what it really relied on was the fact that uh some judges are more inclined to find ambiguity and statutes than other judges are and there was some disagreement in that area but I think what we're going to see in the next however many years is that there's going to be just as much if not more ambiguity or more disagreement about these other questions about what Skidmore Defence means about how to read particular kinds of statutory language as delegations or as not delegations so I think that there's going to be a fair bit of instability and there's going to be some courts and some circumstances um really putting a thumb on the scales for the agency and others not more more to follow well can you tell tell us a little bit about uh your descent in that case where you said that the majority opinion demonstrated huis um I don't think I used the word ubis I think I used the term ubis squared you squared thank you for the correction which is worse is it an adjective though yeah uh ubra squared first because I said it it it it uh it did demonstrate you uis to think that courts were going to be better than agencies in filling in these gaps and resolving these ambiguities the squared part the other part uh um came because the court abandoned star deisis overruled precedent so on the first on the first I mean there's a reason why we give Defence to agencies and I think I've already referred to it they have expertise they have experience in administering their own regulatory scheme you know that was the scheme that Congress gave them to administer and often what they're doing when when when um the interpretive toolkit runs out often what is left is a policy call is a a call that really sounds more in policy than it does in law because the law has run out and and courts aren't supposed to make policy and uh you might say well agencies are also unaccountable but in fact they report to a president they have all kinds of relationships with the Congress which is able to check what they do in various ways so because of their expertise because of their experience and because they're the better makers of policy in an area um it's often likely to be the case it's not always true Chevron Defence didn't apply in certain circumstances but it's often likely to be the case that the agency will be the more appropriate decision maker and the the the uh ler bright courts insistence that courts Do It um is a is a form of of of huis and the um the uh descent gives lots of examples of this uh like the what I tried to do in The Descent was really to show like what do these Chevron questions look like in other words you know it's it's really easy for somebody to say well courts decide questions of Law and the end we're interpreting law and courts interpret law but when you really look at what these questions are like they don't look all that much like law um uh they they uh they look a lot like policy often or they look like things where you know the law does you know looking at the dictionary is not going to tell you much about the meaning of statutory terms um so that's one way in which um I thought that there was ubis and the other way did have to do with the fact that the Court had overruled this 40-year-old president which Congress had largely acquiesced in um uh if if uh you know it hadn't said we love Chevron but it knew all about Chevron and never tried to um modify or to over um override the Court's opinion and notwithstanding the the the court did it and you know there's a law relating to starus Isis a set of factors that you look to to decide when to overrule old cases because of course sometimes it's important to overrule an old case um but but really none of those factors which mostly have to do with changed circumstances um in the law or changed circumstances in society really none of them applied um the court basically just said you know we think courts should have more power we think agencies should have less power uh than Chevron decided um you know I have to say consistent with what is clearly a view of this court that agency decision making needs to be reigned in or you know uh taken back um this is hardly the only case in which this has happened uh the uh West Virginia case of a few years ago in which the court really enhanced the major questions Doctrine uh the jassy case also of last term in which the court um uh uh insisted that um many agencies even uh uh um you know go to courts rather than use in-house decision-making to make decisions even when those agencies unlike the SEC in the case some of these agencies don't have the power to go to courts so you're essentially stripping them of all enforcement Authority um uh and various other ways I think the court has made clear that one of um that you know it just thinks uh there's too much agency regulation going on and that courts need to have better mechanisms for policing that and um uh there is all that agency regulation going on because Congress wants it to be going on because Congress has delegated significant power to uh to the agencies so um so in all those ways I mean story decisis is in itself a sort of doctrine of modesty and a doctrine of judicial humility and it's a reminder to courts to say you know they might have gotten it right 40 years ago when they made this decision and you might be the one that's wrong and and so you need to be able to say more and to do more than just well we would have struck a different balance as between courts and agencies and the court really didn't do that the court just said we want to strike a different balance as between agencies and courts and um and that was the second uis part of the decision thank you for that um we have about five minutes left maybe two questions um time for two questions that means I have to answer more concisely take it as you wish thank you justice um I'm going to Pivot to uh new topic this year old topic from last year last year when we spoke you intimated that there um was likely to be a code of conduct coming soon for the US Supreme Court and sure enough in November we got that code of conduct you heard it here first yes we did thank you very much um there continue to be stories in the media criticisms um and one of the the criticisms of this code of conduct is there does not appear to be an enforcement mechanism and I'm wondering if you can comment or how would you respond to that criticism well I think it's a fair one I mean I think for the most part the code of conduct that we um put out is a good one I wouldn't have uh signed on if I didn't think that the essential rules were good rules and there has been some criticism of those rules that the the the rules themselves depart in certain ways from the rules that apply to other judges but I think that we made good judgments about when those departures were appropriate given different features of the Supreme Court so I think that the rules that we put out are good ones I think that the thing that um uh that can be criticized is you know rules usually have enforcement mechanisms attached to them and this one this set of rules does not and I I think that I mean I think this is a super hard question honestly um like the I I think that the enforcers should be judges I don't I I I can't think of other people who should enforce a code of conduct um as against judges and I think it would be quite bad maybe this goes back to the collegiality question for us to do it to each other in other words for the same uh judges who are sitting around the table trying to decide cases to be to be the people who were saying oh no you broke that rule or you didn't break that rule so then what does that leave I mean it it leaves sort of Judges uh lower down the food chain and and and that creates perplexities you know it's usually the case that uh people who enforce rules are not uh you know we review all of your decisions and then you kind of reviewing our decisions and that's not usually the case and so it it does create complications and uh and real questions and it's it's it's a hard thing to do to figure out who exactly should be doing this and what kinds of sanctions would be appropriate uh for violations of the rules but I feel as though we we um however hard it is that we um could and should try to figure out some mechanism for doing this um you know I would be uh pretty happy with I I have a lot of trust and faith in the Chief Justice um you know if the Chief Justice appointed some sort of Committee of you know highly respected um uh judges with a great deal of experience with a reputation for fairness um uh you know I that that seems like a good solution to me it would also you know benefit us in various kinds of ways because uh it would provide a sort of Safe Harbor there are sometimes people accuse us of misconduct where we haven't engaged in misconduct and um so I think you know both in terms of enforcing the rules against people who have violated them but also in protecting people who haven't violated them I think a system like that would Mak sense that's one person's view I am not you said last year I intimated that we were getting um I'm doing no intimating here uh I was going to ask you that yeah this is one person's View and that's all it is thank you for that and we'll get you out on last question which is uh which we asked you last year and I think we're all interested what are you reading these days you know I came prepared because you asked me that last year it'll it'll be a tradition now okay okay cool uh and I remember last year I gave you a couple of fun books and then I gave you a law book is that right so I because uh I did that last year that's what I came prepared to do so my fun books are um if people uh are uh Anne pageant fans I just loved Tom Lake and and it's um and you shouldn't read it you should listen to it like I never listen to fiction I have this rule where I listen to non-fiction and I read fiction just because I like sort of reading the words when I read fiction but um Tom Lake which is this book about it's about um a sort of Summerstage production of our town and the act the the young women and men actors in that production and what happens to them later in life um um it's a it's a terrific story but um the the reason you should listen to it is because on the audible version Merill Street it and it's it's just stunningly good and it makes you realize like how good and audio of a book can be uh so that's one uh uh the other fun books that I've been reading um at the start of the summer is um there were these books called the Thursday Murder Club um which is about these octogenarians in a kind of Elders Community who um solve murders in their free time and and they're really fun and they're really very and and the books there I think there are four of them uh I know there are four of them and they're very human and Humane um uh one of them even made me cry notwithstanding the fact that I told you I wasn't a crier and uh and they're really terrific okay so here's my law book um last year I told you to read this biography of um Felix Frankfurter uh and in this one Felix Frankfurter plays a cameo role um but it's a book called the the great descent and um it's about how Oliver Wendel Holmes that I think this this is the subtitle of the books like how One Justice which which is Oliver Wendel Holmes changed his mind about free speech and it um it's basically a sort of history of how it is that Oliver Wendell Holmes came to write his great Free Speech descent in Abrams V United States which is The Descent that um creates the whole Marketplace of ideas metaphor and which is The Descent that becomes in the course of decades uh really truly the uh the basis of this the Supreme Court's First Amendment jurus Prudence so it's one of those uh descents that you can look at and say he was ahead of his time but it but now we understand that that's the basis of our first amendment law notwithstanding that it was a descent and it's a remarkable book I mean it's about a really interesting subject you know thinking about free speech is pretty interesting but but it's also about how justices changed their mind and and and Oliver wend Holmes was 78 at the time he was about ready he was thinking about leaving the court although he had another 12 years to go he had already been a judge for a long period of time you would have thought like he kind of knew what he knew and thought what he thought and that there wouldn't be all this room for INT ual growth and it's about how judges can find this room for intellectual growth and how they can change their minds and uh and Felix Frankfurter who was much younger than Oliver Wendell Holmes and um Learned Hand uh also much younger and and a non-lawyer um a Harvard politics Professor named um Harold lasy uh also much younger I mean 40 years you know Young than uh play important roles in bringing uh Holmes to the conclusion that he's gotten this fundamentally wrong and that he's going to sort of redo his thinking in this area and the um it's it's just sort of like a fascinating intellectual history and then of course the opinion that Holmes produces uh along with Brandy's opinion and there's a big a big Cameo for uh brandise here uh you know are such Mass works of judicial literature as well as judicial thought um that the whole book is just fantastic the great descent thank you Justice Kagan thank you for just so much being so generous with your time it's really uh a highlight of our conference pleasure thank you