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Her Honor

People who think Justice Elena Kagan should recuse herself from the looming “Obamacare” case might want to take a closer look at her first term.

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The inside of the ceremonial courtroom of the United States Supreme Court—where formal oral arguments are heard from October through April—is dark and hushed, draped in red velvet curtains, with a ceiling that rises to the heavens, as nine tiny titans preside from a high bench. The justices bar television cameras, limit seating, and generally do everything in their power to reinforce the impression that the high court is an American oracle at Delphi, the closest thing this country has to a national church. When they agreed this month to hear the challenge brought by 26 states to President Obama’s signature health-care-reform law, the justices stepped into a defining battle over the meaning of the Constitution, the nature of freedom, and the role of the courts. The fight over the Affordable Care Act—which will be heard over an almost unprecedented five and a half hours this spring and decided by the end of June—will push the nine justices into a political spotlight they say they try to avoid.

The outcome of this case, plus affirmative-action, gay-marriage, and voting-rights cases teed up before the Court, may well define the John Roberts era forever, and do so at the risk of damaging the Court’s hard-fought appearance of cool judicial detachment and having neutral legal principles. Americans who’ve grown tired of the 5-4 conservative-liberal splits suspect the nine justices will vote on the health-care case based on naked ideology, with a partisan outcome that may make Bush v. Gore look like a fight over unpaid traffic tickets.

At the center of the growing furor over the number of justices allegedly too biased to hear the health-care case sits Elena Kagan, the newest justice, on the Court just over a year. While liberal watchdog groups are claiming that Justice Clarence Thomas should recuse himself from the case because of his wife’s affiliation with a tea-party group that explicitly targeted the new health-care law, several conservative groups have raised similar claims about Kagan, contending that she must sit this one out because she worked as President Obama’s solicitor general when the litigation was still pending. Calls for her recusal boiled over in recent weeks when newly disclosed e-mails revealed that as she was solicitor general under Obama, Kagan celebrated with her Justice Department colleague, Laurence Tribe, when the health-care bill was passed, writing, “I hear they have the votes, Larry!! Simply amazing.” Her opponents say this confirms that Kagan both strategized about and advised the administration on the law, and also expressed opinions on its constitutional merits, in violation of the recusal rules.

But while Kagan is assuredly a liberal, and likely also a fan of the health-reform law, a close read of her tenure at the Supreme Court suggests that she is in fact the opposite of a progressive zealot. By the end of Kagan’s first term, conservatives like former Bush solicitor general Paul Clement (who will likely argue against the health-care law this coming spring) and Chief Justice John Roberts were giving Kagan high marks as a new justice precisely because she wasn’t a frothing ideologue. The pre-confirmation caricatures of her as a self-serving careerist and party hack are not borne out by her conduct at oral argument, her writing, and her interactions with her colleagues. In fact, if her first term and a half is any indication, she may well madden as many staunch liberals as conservatives in the coming years.

The Supreme Court is currently experiencing what is known as an extremely “hot bench.” That’s a polite way of saying the justices ask so many questions at the one-hour session allocated to each case that counsel can’t get a word in. While new justices, in particular, often go silent during their first few weeks and months at the verbal roller derby (the soft-spoken Justice David H. Souter and the mild-mannered Justice Samuel Alito each asked very few questions in their first terms, and Thomas has not asked a question at oral argument for five years), the two new female justices are different.

In her first hour of oral argument at the Court in 2009, Justice Sonia Sotomayor asked 36 questions, and studies by Timothy Johnson at the University of Minnesota suggest that while each justice over the past decade has asked an average of about fourteen questions per argument, in her first term Sotomayor asked an average of sixteen. At one argument last year, when Sotomayor cut off Justice Ruth Bader Ginsburg with a question of her own, Roberts broke in to tell the baffled oral advocate, “I’m sorry. Could you answer Justice Ginsburg’s question first?” In another case, Roberts stopped Sotomayor as she interrupted Justice Anthony Kennedy and told her to let him finish his question.


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