On the Supreme Court, not a lot of respect for Elena Kagan

The solicitor general's appearances before the high court have been marked by unusually brusque treatment

Topics: Supreme Court,

On the Supreme Court, not a lot of respect for Elena KaganWASHINGTON - MAY 20: U.S. Solicitor General Elena Kagan addresses the forum "Striking the Balance: Fair and Independent Courts in a New Era" at Georgetown University Law Center May 20, 2009 in Washington, DC. A former Dean of the Harvard Law School, Kagan's name has been included on many peoples' short list of possible candidates to the Supreme Court to replace Justice David Souter, who is retiring this year. (Photo by Chip Somodevilla/Getty Images)(Credit: Chip Somodevilla)

In the extensive speculation about Elena Kagan’s potential nomination to the Supreme Court, left-leaning commentators have mainly debated whether Kagan’s ideological instincts are sufficiently liberal.

Largely overlooked, though, is an issue that is ultimately more far-reaching: whether Kagan would be an effective liberal on the court — that is, whether she has the skills to win over Anthony Kennedy, who casts the decisive vote in nearly all of the court’s most closely divided cases, and whether she could match wits with Antonin Scalia and John Roberts, the court’s conservative fire-breathers.

Based on a review of the transcripts of Kagan’s appearances before the court as President Obama’s solicitor general, there is little reason to believe that she possesses particular deftness on either front. Even more surprisingly, Kagan has not infrequently raised the ire of the court’s more liberal members, her supposed ideological allies. The data points are few (she has argued only six cases before the court), but they give little reason to believe that her transition to the court would be made with anything approaching seamlessness.

Kagan’s very first oral argument — in the landmark Citizens United case — is emblematic. The first interruption came about three sentences into the argument: “Wait, wait, wait, wait.” That was Justice Scalia, convinced that Kagan had gone awry on her very first point. Kagan’s attempted explanation went nowhere. Scalia, again: “I don’t understand what you are saying.”

When John Paul Stevens tried to suggest a potential answer to Kagan, she missed the cue, prompting the normally patient Stevens to remark, “I don’t think you really caught what I suggested.”

Things got no better during the rest of Kagan’s half-hour at the podium. At about the 29-minute mark, Ruth Bader Ginsburg asked about the government’s apparent switch in position over the course of the case. Here, according to the transcript, is how Kagan’s reply went: “‘The government’s answer has changed, Justice Ginsburg.’ (Laughter.)”

To a certain extent, Kagan’s troubles were not of her own making. Through various procedural maneuvers, the court had suggested long before her argument that it would hold against the government, so Kagan cannot fairly be called the author of the government’s Citizens United loss.



But she certainly didn’t do herself or the United States any favors. When the case was argued in September 2009, a modest defeat was still well within the realm of possibility, provided that Kagan could secure Kennedy’s vote. But she seemed oddly unconcerned with addressing his qualms. At one point, Kennedy asked Kagan to address a particular issue, which she had labeled “point two” in her opening remarks:

Kennedy: In the course of this argument, have you covered point two? … I would like to know what it is.

Kagan: I very much appreciate that, Justice Kennedy. I think I did cover point two.

She quickly moved on. Four months later, Kennedy wrote a 5-4 opinion that handed Kagan and the U.S. government a sweeping defeat.

In subsequent arguments, Kagan has proven no more adept at assuaging Kennedy’s anxieties. In a recent case, Kennedy’s question about a particular piece of legal precedent was met with, “I — I am not familiar with that case.” In another argument, Kennedy suggested that Kagan was dodging the crux of his hypothetical: “No, no, no. That makes … my hypo too easy for you.” And in yet another case, Kagan was unable to muster a coherent response to Kennedy’s request for case law supporting the government’s position.

Kagan’s attempts at pacifying the court’s conservatives have similarly faltered. It’s hardly surprising that justices like Scalia and Roberts would disagree with the positions taken by a representative of the Obama administration. What is noteworthy, though, is the curtness with which they’ve done so.

For example, in a case challenging the constitutionality of a key provision of Sarbanes-Oxley, the 2002 law that in part established a new government agency to supervise auditing firms, various assertions by Kagan were brusquely dismissed: “No, but that’s not true” (Scalia); “Oh, no, no” (Roberts); and “No” (Roberts again).

Kagan’s most recent argument, Robertson v. United States, played out much the same way. There, Roberts called one of Kagan’s assertions “absolutely startling.” And when she supported one legal point with the claim that “[t]he United States Government is a complicated place,” Roberts remarked sardonically, “I take your word for it.” Later, when Kagan returned one of Scalia’s questions with a query of her own, Roberts offered a subtle but unmistakable rebuke: “Usually we have questions the other way.”

Notably, the rough treatment has not just come at the hands of Roberts and Scalia. Their left-leaning colleagues have occasionally been equally exasperated by Kagan: “[T]hat’s not what I’m talking about” (Stephen Breyer); “I don’t understand that point at all” (Sonia Sotomayor); “That is not my question” (Stevens).

These mild reprimands might seem like unexceptional bits of standard judicial give-and-take, but there are several reasons to think they might signify something more meaningful. For one, the Supreme Court is a place of exceeding decorousness. In the unfailingly civil world of court proceedings, even minor impoliteness can indicate severe misgivings.

This is all the more true given Kagan’s role as solicitor general, a position often referred to as the “tenth justice,” because of the frequency with which the court consults his or her views. A relationship of respect and trust typically develops between the justices and the solicitor general. Thus, any signs that the bond between the two is fraying — or nonexistent — is noteworthy.

It is worth remembering, too, that well before Kagan’s first Supreme Court argument, she was rumored to be on Obama’s short list for any future court opening. When the justices interrogate Kagan, they know they’re speaking with someone who may well be a future colleague. Telling, then, are the occasional slips in the court’s typical mask of politeness.

We cannot know for sure whether the justices’ occasional frustrations with Kagan — and Kagan’s occasional obtuseness — are predictive of her future relationships with her potential co-workers. And, to be fair, she has exhibited occasional adroitness as solicitor general, and her work as dean of Harvard Law School in corralling the notoriously fractious faculty suggests that both accommodation and conciliation have slots on her tool belt.

Still, there’s no evidence in her interactions with the justices so far to suggest that she possesses an intuitive understanding of their concerns, or that they harbor a natural respect for her positions. That hardly disqualifies her as a Supreme Court nominee. But if, come the next Supreme Court term, Justice Kagan’s colleagues find her occasionally tone-deaf and only intermittently persuasive, no one can say there was no warning.

James Doty is a writer and lawyer living in New York.

More Related Stories

Featured Slide Shows

  • Share on Twitter
  • Share on Facebook
  • 1 of 11
  • Close
  • Fullscreen
  • Thumbnails

    Ten spectacular graphic novels from 2014

    Beautiful Darkness by Fabien Vehlmann & Kerascoët
    Kerascoët's lovely, delicate pen-and-watercolor art -- all intricate botanicals, big eyes and flowing hair -- gives this fairy story a deceptively pretty finish. You find out quickly, however, that these are the heartless and heedless fairies of folk legend, not the sentimental sprites beloved by the Victorians and Disney fans. A host of tiny hominid creatures must learn to survive in the forest after fleeing their former home -- a little girl who lies dead in the woods. The main character, Aurora, tries to organize the group into a community, but most of her cohort is too capricious, lazy and selfish to participate for long. There's no real moral to this story, which is refreshing in itself, beyond the perpetual lessons that life is hard and you have to be careful whom you trust. Never has ugly truth been given a prettier face.

    Ten spectacular graphic novels from 2014

    Climate Changed: A Personal Journey Through the Science by Philippe Squarzoni
    Squarzoni is a French cartoonist who makes nonfiction graphic novels about contemporary issues and politics. While finishing up a book about France under Jacques Chirac, he realized that when it came to environmental policy, he didn't know what he was talking about. "Climate Changed" is the result of his efforts to understand what has been happening to the planet, a striking combination of memoir and data that ruminates on a notoriously elusive, difficult and even imponderable subject. Panels of talking heads dispensing information (or Squarzoni discussing the issues with his partner) are juxtaposed with detailed and meticulous yet lyrical scenes from the author's childhood, the countryside where he takes a holiday and a visit to New York. He uses his own unreachable past as a way to grasp the imminent transformation of the Earth. The result is both enlightening and unexpectedly moving.

    Ten spectacular graphic novels from 2014

    Here by Richard McGuire
    A six-page version of this innovative work by a regular contributor to the New Yorker first appeared in RAW magazine 25 years ago. Each two-page spread depicts a single place, sometimes occupied by a corner of a room, over the course of 4 billion years. The oldest image is a blur of pink and purple gases; others depict hazmat-suited explorers from 300 years in the future. Inset images show the changing decor and inhabitants of the house throughout its existence: family photos, quarrels, kids in Halloween costumes, a woman reading a book, a cat walking across the floor. The cumulative effect is serene and ravishing, an intimation of the immensity of time and the wonder embodied in the humblest things.

    Ten spectacular graphic novels from 2014

    Kill My Mother by Jules Feiffer
    The legendary Pulitzer Prize-winning cartoonist delivers his debut graphic novel at 85, a deliriously over-the-top blend of classic movie noir and melodrama that roams from chiaroscuro Bay City to Hollywood to a USO gig in the Pacific theater of World War II. There's a burnt-out drunk of a private eye, but the story is soon commandeered by a multigenerational collection of ferocious women, including a mysterious chanteuse who never speaks, a radio comedy writer who makes a childhood friend the butt of a hit series and a ruthless dame intent on making her whiny coward of a husband into a star. There are disguises, musical numbers and plenty of gunfights, but the drawing is the main attraction. Nobody convey's bodies in motion more thrillingly than Feiffer, whether they're dancing, running or duking it out. The kid has promise.

    Ten spectacular graphic novels from 2014

    The Motherless Oven by Rob Davis
    This is a weird one, but in the nervy surreal way that word-playful novels like "A Clockwork Orange" or "Ulysses" are weird. The main character, a teenage schoolboy named Scarper Lee, lives in a world where it rains knives and people make their own parents, contraptions that can be anything from a tiny figurine stashable in a pocket to biomorphic boiler-like entities that seem to have escaped from Dr. Seuss' nightmares. Their homes are crammed with gadgets they call gods and instead of TV they watch a hulu-hoop-size wheel of repeating images that changes with the day of the week. They also know their own "death day," and Scarper's is coming up fast. Maybe that's why he runs off with the new girl at school, a real troublemaker, and the obscurely dysfunctional Castro, whose mother is a cageful of talking parakeets. A solid towline of teenage angst holds this manically inventive vision together, and proves that some graphic novels can rival the text-only kind at their own game.

    Ten spectacular graphic novels from 2014

    NOBROW 9: It's Oh So Quiet
    For each issue, the anthology magazine put out by this adventurous U.K.-based publisher of independent graphic design, illustration and comics gives 45 artists a four-color palette and a theme. In the ninth issue, the theme is silence, and the results are magnificent and full of surprises. The comics, each told in images only, range from atmospheric to trippy to jokey to melancholy to epic to creepy. But the two-page illustrations are even more powerful, even if it's not always easy to see how they pertain to the overall concept of silence. Well, except perhaps for the fact that so many of them left me utterly dumbstruck with visual delight.

    Ten spectacular graphic novels from 2014

    Over Easy by Mimi Pond
    When Pond was a broke art student in the 1970s, she took a job at a neighborhood breakfast spot in Oakland, a place with good food, splendid coffee and an endlessly entertaining crew of short-order cooks, waitresses, dishwashers and regular customers. This graphic memoir, influenced by the work of Pond's friend, Alison Bechdel, captures the funky ethos of the time, when hippies, punks and disco aficionados mingled in a Bay Area at the height of its eccentricity. The staff of the Imperial Cafe were forever swapping wisecracks and hopping in and out of each other's beds, which makes them more or less like every restaurant team in history. There's an intoxicating esprit de corps to a well-run everyday joint like the Imperial Cafe, and never has the delight in being part of it been more winningly portrayed.

    Ten spectacular graphic novels from 2014

    The Shadow Hero by Gene Luen Yang and Sonny Liew
    You don't have to be a superhero fan to be utterly charmed by Yang and Liew's revival of a little-known character created in the 1940s by the cartoonist Chu Hing. This version of the Green Turtle, however, is rich in characterization, comedy and luscious period detail from the Chinatown of "San Incendio" (a ringer for San Francisco). Hank, son of a mild-mannered grocer, would like to follow in his father's footsteps, but his restless mother (the book's best character and drawn with masterful nuance by Liew) has other ideas after her thrilling encounter with a superhero. Yang's story effortlessly folds pathos into humor without stooping to either slapstick or cheap "darkness." This is that rare tribute that far surpasses the thing it celebrates.

    Ten spectacular graphic novels from 2014

    Shoplifter by Michael Cho
    Corinna Park, former English major, works, unhappily, in a Toronto advertising agency. When the dissatisfaction of the past five years begins to oppress her, she lets off steam by pilfering magazines from a local convenience store. Cho's moody character study is as much about city life as it is about Corinna. He depicts her falling asleep in front of the TV in her condo, brooding on the subway, roaming the crowded streets after a budding romance goes awry. Like a great short story, this is a simple tale of a young woman figuring out how to get her life back, but if feels as if it contains so much of contemporary existence -- its comforts, its loneliness, its self-deceptions -- suspended in wintery amber.

    Ten spectacular graphic novels from 2014

    Through the Woods by Emily Carroll
    This collection of archetypal horror, fairy and ghost stories, all about young girls, comes lushly decked in Carroll's inky black, snowy white and blood-scarlet art. A young bride hears her predecessor's bones singing from under the floorboards, two friends make the mistake of pretending to summon the spirits of the dead, a family of orphaned siblings disappears one by one into the winter nights. Carroll's color-saturated images can be jagged, ornate and gruesome, but she also knows how to chill with absence, shadows and a single staring eye. Literary readers who cherish the work of Kelly Link or the late Angela Carter's collection, "The Bloody Chamber," will adore the violent beauty on these pages.

  • Recent Slide Shows

Comments

0 Comments

Comment Preview

Your name will appear as username ( settings | log out )

You may use these HTML tags and attributes: <a href=""> <b> <em> <strong> <i> <blockquote>