Her Honor

Photo: Collection of the Supreme Court of the United States

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.

Elena Kagan as a high-school student in 1977.Photo: Zuma Press/Newscom

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.

Then-University of Chicago law professor Kagan with colleague Daniel Shaviro in 1992.Photo: Courtesy of the University of Chicago Law School

To some, her affability suggests that Kagan is an operator, dispensing goodwill everywhere she visits, but never quite asserting her own belief system. One of her most vocal critics on the left, Salon’s legal columnist, Glenn Greenwald, blasted Kagan in the spring of 2010 for a failure to speak out about Bush-era lawlessness. He went on to argue that “even on the issues where she has been impressive—such as her refusal to allow military recruiters to recruit at Harvard Law School due to their anti-gay discrimination—her record is ultimately rather muddled … she quickly reversed that policy and allowed military recruiters onto campus after the Federal Government threatened to withhold several hundred million dollars in funds to Harvard.”

It’s easy to assume that Kagan’s efforts to please everyone are a sign that she is motivated by a highly attuned sense of political survival. But as Tom Goldstein—who argues frequently before the Court and is a co-­founder of the website scotusblog—points out, “You don’t snooker Supreme Court justices. We have this image of Justice Brennan getting votes by being friendly; by wrapping his arm around your shoulders,” he says. “But these are the big leagues, and to have influence, you have to be substantive. You have to be that good.”

What Kagan did that most impressed her early critics last year had nothing to do with shooting skeet and everything to do with her writing. For years Scalia has been acknowledged as the Court’s greatest wordsmith. In a 1996 dissent, he wrote, “The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize.” Last term, Kagan nudged her way into his literary stratosphere. Like Scalia and Roberts, she uses short, crisp sentences. Jargon at a minimum. Memorable metaphors that make complicated ideas accessible. It’s as if half of her is writing to influence her colleagues while the rest of her is writing to sway everyone else. Lisa Blatt, who heads up Arnold & Porter’s appellate and Supreme Court practice, points out that Kagan has repeatedly used the words imagine and you and writes directly to the reader. Blatt notes that this is a technique that instantly “draws the audience into the process of decision-making.”

But it also signals something about the way Kagan thinks. She’s interested in working through the argument—both sides fully credited—and appealing to readers to weigh in, instead of beating them down with a doctrinal worldview (Thomas, by contrast, devoted an entire dissent last year to a twenty-page meditation on the joys of strict Colonial parenting). Kagan invites readers to substitute their judgment for her own. “Here are the facts; what would you do?” is not merely the sign of a mind devoted to the process of legal logic, it’s an act of making the lone justice less important than the community. At oral argument in a case this past October about a death-row inmate who missed a critical filing deadline because a letter detailing that deadline was sent to his lawyers (who’d by that time left the firm), Kagan deployed the same technique. As she pressed Alabama’s solicitor general on why nobody in the court clerk’s office saw fit to tell the inmate the letter had been returned, she asked, “So you send off this letter, and you get it back from the principal attorneys, and you ask yourself: ‘Huh, should I do anything now?’ What would you say?”

To which the solicitor general was forced to concede in response, “Your honor, I suspect that in those circumstances I might well personally do something else.” Jeffrey Fisher, who co-directs the Supreme Court clinic at Stanford Law School, characterizes Kagan as “more than just the best doctrine cruncher. She has something that comes from a ­higher—almost subconscious—level: an insight into common sense.”

So many of the greatest judicial stylists have used rhetorical brickbats to mark their territory, to brutalize opponents and to intimate that to disagree is to be doltish. Scalia has been known to make this point explicitly, such as in a 1989 abortion dissent in which he wrote that an opinion by Justice Sandra Day O’Connor “cannot be taken seriously.” Stevens was more than willing to express his outrage at the majority in his dissent in the big campaign-finance case, Citizens United. One can practically read the sneer marks in his observation “While American democracy is imperfect, few outside the majority of this court would have thought its flaws included a dearth of corporate money in politics.”

But Kagan seems to have brought a Bic pen to a quill fight, with a mix of her second-person narrative and appeals to collective wisdom. (When she’s come off as pointed in her writing, she’s expressed regret. After penning a dissent in an Arizona campaign-financing case, Kagan accused the majority of looking for “smoking guns,” but in the end, “the only smoke here is the majority’s, and it is the kind that goes with mirrors.” She later admitted to a moderator at an event, “You know, listening to that, I’m not sure I would have written it that way again.”)

Kagan on the first day of her confirmation hearings in June 2010.Photo: Win McNamee/Reuters

Back when she was the dean of Harvard Law School, Kagan evinced the same concern for civil discourse across ideological divisions. When she took over as the first woman dean there in 2003, she hired three conservative legal thinkers, including Goldsmith—who came from the Bush administration’s controversial Office of Legal Counsel—as well as Adrian Vermeule, who formerly taught at the University of Chicago Law School, and John Manning, who clerked for Scalia. She went out of her way to welcome conservative heroes (like Scalia) and conservative student groups to campus. In February 2005, the student branch of the Federalist Society held its national jamboree at Harvard. As legal legend Charles Fried described it last year in The New Republic, “Kagan rose to speak the host institutions’ words of greeting to the thousand or so Federalists assembled from every corner of the country. She was greeted by a long and raucous ovation. With a broad grin and her unmistakable Upper West Side twang, the former ­Clinton White House official responded, ‘You are not my people.’ This brought the dark-suited crowd of Federalist students to their feet in a roar of affectionate approval.”

Kagan expanded Harvard’s institutional voice, even when it meant muting her own. In some ways, she’s done precisely the same thing at the Court. Clement points to another subtle aspect of her approach this term: Justices always have the option to write separate opinions, dissents, or concurrences (separate opinions that agree with the majority on the outcome but not the rationale) for themselves alone. And the temptation to write separately is enormous. Lone opinions are a way for a justice to lay philosophical markers, to signal future battles, to send up a flare to like-minded justices, lawyers, and academics, that he or she is receptive to particular arguments in the future. Chief Justice William Rehnquist was famous for his lone dissents. As is Thomas today. But Clement notes that in her first term, Kagan only wrote majority opinions and dissents when they were assigned to her. In other words, she consciously avoided the temptation to write for herself. In Clement’s view, this “suggests a tendency to vote and decide, and write if assigned, but not to articulate her own nuanced view in every case.”

She is deciding her cases one at a time, without hints or promises about where she may be moved down the road.

At one level Kagan keeps demonstrating that she can subordinate her name and even her voice to the institution as a whole. But in a deeper way, in declining to write for herself alone, she is also refusing to highlight areas in which she’s open for doctrinal business. She is deciding her cases one at a time, without hints or promises about where she may be moved down the road. Nowhere was this more apparent than last month, when Kagan voted with the Court’s conservative bloc in a case concerning a grandmother convicted of shaking a baby to death. The appeals court freed the grandmother, finding the jury’s conclusion irrational. Kagan broke with the left wing of the Court and silently joined the conservative majority in an unsigned opinion reversing the decision.

Kagan may prove more conservative than her predecessor Stevens, or this can be an outlier. Either way, the justice isn’t talking. That’s a rather conservative quality, and it’s generally the Court’s conservatives who speak reverently of judicial restraint and humility. While some may find her close-to-the-vest behavior a strategy in itself, it might instead be proof that Kagan is a purist. One with a real commitment to the fundamental purpose of the Court: to weigh each case independently and impartially.

It’s an impossibly fine line Supreme Court justices are expected to walk: They’re supposed to interact with the public, yet do nothing to show that they have prejudged a dispute; to live out in the sunlight, but convey the impression that nothing matters to them but their holy connection to the constitutional text; to think and write deeply about important legal questions, but to approach each case with the innocence of a newborn kitten.

The health-care case has put the high court in the national crosshairs. Just as the country is locked in partisan indecision, the high court is being attacked from all sides as a collection of party loyalists in black rayon. Every single one of the major Republican candidates for the presidency has put forth a plan to curb the Court’s power, precisely because some of the justices have—in speeches, books, and partisan political activities—tended to signal that they are political actors. Calls that three or more justices should step down from the health-care case represent an effort to reduce the justices to the sum of their political actions. It solves the “problem” of partisans at the Court at the expense of the integrity of the Court as a whole. Like the confirmation process itself, attacks on cartoon versions of villainous justices are mostly just theater—denying the reality of a judge’s everyday life and work on the bench.

Since joining the Court, Kagan has been at pains to avoid the appearance of conflict and driving ideology. In fact she’s avoided personal conflict altogether, limiting her public appearances, giving no inflammatory speeches, praising her colleagues, and setting no fires. She has resisted classification in almost every way, and the caricatures of her as an unhinged lefty bomb thrower ignore over a year’s conduct as a justice.

Most Court experts believe the health-care case will be decided by a 6-3 or a 7-2 margin (upholding the act, if you want to call your bookie now), and that’s because for every Bush v. Gore, there are hundreds of cases that are not decided along party lines, and also because party lines don’t always begin and end at wanting to embarrass the president. Kagan may have been happy at the passage of health-care reform, just as each of the other eight justices had his or her opinion. If their opinions alone carry the day, there’s more to worry about here than just the fate of the Constitution’s interstate-commerce clause.

Kagan has leaned both left and right, and she is also quite possibly the last living acolyte in the Church of the Supreme Court’s Specialness. For her, the work of the Court isn’t a matter of crushing the opposition; it’s a matter of finessing it. Maybe she’s still relatively new. Maybe it’s that she hasn’t been entombed in a federal courthouse for decades. Or maybe law and politics really are essentially different enterprises. Kagan will not recuse herself from the health-care case, and that is as it should be. She will decide it as a member of a larger body, triangulating against the words of the Constitution and the constraints of prior precedent. The very existence of the Court depends on that.

Her Honor