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Her Honor

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Elena Kagan as a high-school student in 1977.  

It is not that Kagan is silent at oral argument. She is more talkative than her bow-tied predecessor, Justice John Paul Stevens, who tended to sit quietly through most of each session before gently asking, “May I ask a question?” Kagan asked ten questions on her very first day out last fall. But she actually asked the second-fewest questions this year. Only Thomas spoke less, as in not at all, and the questions Kagan has asked were incisive and quite brief. As one Court observer put it to me this spring after oral argument: “Sotomayor talks. Kagan listens.”

Kagan seems to recognize what Justices Stephen Breyer and Antonin Scalia have said about using the Court’s brief public-argument time: that it’s the best way to begin the seduction of your colleagues right there. In one of the only interviews she conducted this year, on C-SPAN, Kagan explained that this is precisely her thinking: “We don’t talk about the cases together beforehand … Oral arguments provide the first chance for you to see what your colleagues think about a case … and for you to suggest to them what you think … I listen hard to what happens in an argument.”

“[Kagan] has something that comes from a higher—almost subconscious—level: an insight into common sense.”

Jack Goldsmith, a conservative scholar who worked in the George W. Bush administration and whom Kagan famously invited to join the Harvard faculty, describes Kagan as having a “finely tuned social and situational sense that allows her to pick up everything that’s going on in a room.” At her first oral argument, she was already redirecting an attorney to pay a little more attention to the court’s most valuable player: “This goes back to Justice Kennedy’s question,” she began. In a November 2010 case she was again pressing counsel: “Could I try Justice Kennedy’s question in a slightly different way?” Given that it’s Kennedy who has proved the crucial swing vote at the Court in virtually every important case in nearly a decade, that’s probably a good strategy.

Every once in a while, Kagan’s social sonar has failed her, and she has come off sounding too familiar. It’s one of the reasons she had a rough ride as solicitor general. At a February 2010 argument, Kagan stepped up to the podium to defend a law forbidding Americans from providing “material support” to suspected terrorist groups. Because she’s shorter than most oral advocates at the Court, she was forced to manually lower the lectern with an old-timey crank. “With your permission, Mr. Chief Justice,” she cracked, “this may take some time.” Laughter.

Things got weird, though, when she pushed her comedic luck as the argument progressed. Sotomayor asked Kagan whether the law prohibiting Americans from offering “material support” for terrorist groups might bar Americans from “teaching these members to play the harmonica?” In other words, does teaching members of a terror group how to dig wells, or any other peaceful skills, really constitute aiding terrorists under the statute? Kagan couldn’t resist the joke: “The first thing I would say is there are not a whole lot of people going around trying to teach Al Qaeda how to play harmonicas,” she replied.

Scalia was having none of that rookie back talk. “Well, Mohammed Atta and his harmonica quartet might tour the country and make a lot of money,” he snapped.

But on the bench, Kagan has worked at not being a contentious presence. Many of the justices were once great lawyers themselves, and they have come to use the hourlong oral-argument sessions to showcase their own brilliance or to batter a colleague or the lawyer arguing before them. They want us to see how this thing is done. Roberts is increasingly fond of tripping up counsel in their own factual errors and misstatements. Justice Stephen Breyer is a devotee of the three-part hypothetical (including verbal footnotes) that takes six minutes to unspool. But Kagan avoids all that. It’s an almost entirely ego-free enterprise, but it conveys the impression of Kagan as open-minded; of a judge as opposed to an overeager debater.

Kagan is a classic extrovert. Her critics, including disappointed liberals who wanted a Thurgood Marshall 2.0 at the Court, have characterized her as a glad-hander and a shmoozer. And she did spend her first term making friends with her new colleagues. While avoiding the television cameras and reporters, Kagan logged time at the shooting range with Scalia and hit the D.C. opera scene with Ginsburg. She is also responsible (and fêted by the Chief Justice) for bringing the first frozen-yogurt machine to the cafeteria of the high court, mere decades after its introduction in the rest of the Western world. While Thomas devoted much of his autobiography, My Grandfather’s Son, to listing his many enemies, Kagan appears to think she hasn’t any.


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