Federal Courts and Nominations

Kagan offers practicality to arguments, settles in as new justice


WASHINGTON — She sits at the far end of the bench and, as the newest justice and first appointee in nearly 40 years without prior judicial experience, Elena Kagan could have found herself on the fringe of the Supreme Court’s fast-paced oral arguments.

But she has shown after two rounds of arguments and 10 cases that she can work her way easily into the Q-and-A and cut to the heart of an issue.

From the start, Kagan, a former U.S. solicitor general and Harvard law dean, has showed a veteran’s sense of timing. Wearing her black robe without adornment, she enters the fray without stepping on other justices’ lines. In fact, she makes use of them.

Kagan asks questions focused on the legal issue yet often with a practical twist.

In a dispute over a California law restricting the sale of violent video games to minors, Kagan asked about a specific game: “You think Mortal Kombat is prohibited by this statute?” On the constitutional issue, she probed why “video games are (a form of free) speech … because you could look at these games and say they’re the modern-day equivalent of Monopoly sets.”

To an Arizona lawyer defending a program that gives tax credits for donations to “school tuition organizations” and benefits religious schools, Kagan said, “Can you tell me why Arizona adopted this sort of scheme rather than the more typical tuition voucher scheme?”

Kagan, who was sworn in Aug. 7, has written no opinions and has cast few votes. So her presence has been felt primarily in the argument sessions held since the court began a new term Oct. 4. In her only major vote to date, Kagan aligned with liberals — in dissent — to protest a decision allowing the execution of an Arizona murderer with a lethal injection drug from a foreign country.

Playing off others’ questions

Carter Phillips, a longtime advocate before the court, recently observed that a new justice typically “takes awhile to get used to” the rapid pace of this court, where most of the nine — all but Clarence Thomas— ask questions.

Phillips, a close friend of Justice Samuel Alito, noted that Alito, who was appointed in 2006, asked relatively few questions in his first term but is now active on the bench.

Alito has said that in his early months, it was difficult to find an opening in the questions, especially listening from the freshman justice’s seat at the far end.

Kagan seems to have no such trouble. She regularly picks up on other justices’ queries and turns them to her particular interest. “Could I try Justice (Anthony) Kennedy’s question in a slightly different way?” she asked the lawyer in one case.

In another dispute, she asked, “Could I take you back to Justice (Antonin) Scalia’s original question?”

Kagan, who speaks in a measured voice that reveals only a hint of her Manhattan roots, has more significantly stood out in her sharp practical queries.

To a lawyer representing disgruntled cellphone customers who challenged an AT&T Mobility contract provision barring class-action lawsuits, Kagan noted that AT&T’s alternative arbitration policy offers benefits for customers. If the company loses its case, she suggested, it could “kill off arbitration” that has helped some consumers.

Yet Kagan highlighted California courts’ view that a ban on class-action suits is unfair under state law and said, “Now, who are we to say the state is wrong?”

She homed in on a key dilemma in a case brought by the father of a U.S. Marine killed in Iraq. The fundamentalist Baptist pastor Fred Phelps protested at the son’s funeral, and the father sued for damages. Kagan asked about a passage of a 1988 free speech case that may make it hard for the court to rule for the father.

That case, she noted, offered a warning about jurors’ assessments of “outrageousness in the area of political and social discourse.” She referred to “one sentence that is key to the whole decision” that cautions against allowing “a jury to impose liability on the basis of the jurors’ tastes or views.”

Solicitor general experience

Because of conflicts of interest from her earlier work as solicitor general, the government’s top lawyer before the court, Kagan has sat out 15 of the 25 cases argued this term.

The federal government is regularly a party to cases, and even when it isn’t, it often voices views on disputes in “friend of the court” briefs. As Kagan’s tenure continues and the government increasingly brings cases in which she played no role, her participation will increase.

It is especially early to predict any potential impact on the law. Harvard law professor Charles Fried, who was a solicitor general in the Reagan administration and supported Kagan’s nomination, said recently that if she has significant influence among the nine, “It will be because she is able to see aspects of a case and to emphasize them” in a way that brings consensus to the bench.

Her tenure as solicitor general does not appear to have tilted her toward the government.

In the Arizona tax credit case testing the separation of church and state, acting U.S. Solicitor General Neal Katyal argued for a rule that would curtail the reach of past cases that allowed people to challenge programs when taxpayer dollars might be used to support religion.

“If you are right, General Katyal,” Kagan interjected with some exasperation, “the (Supreme) Court was without authority to decide” five different cases going back decades. Kagan continued, “The court was out of authority to decide any of those cases, but somehow nobody on the court recognized that fact?”

Doug Kendall, president of the liberal-leaning Constitutional Accountability Center, said later, “Anyone who thought the positions she took as solicitor general were a precise depiction of her own views only had to see her grill her successor in that office.”

To read this article in USA Todayclick here.


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