Anyone who watched Elena Kagan’s performance before the Senate judiciary committee last month saw that under the bright lights of public scrutiny, she is quick-witted, conversational, and rarely cowed. She’s funny and charming, but she’s not real big on deference. And so one question that lingers, as the former solicitor general prepares to join the highest court in the land: Will those qualities help or hurt Elena Kagan in the darkened marble halls of the Supreme Court?
Kagan already has some history at the court. And it didn’t go unremarked by court watchers last term that Kagan’s six outings before the Roberts Court as President Obama’s solicitor general were sometimes uneasy. Some of us suggested that Kagan—who’d never argued a case until she argued the blockbuster Citizens United campaign finance case last September—was still just finding her footing at the court. Others observed that many of the justices, most notably Chief Justice John Roberts, appeared perpetually exasperated by her. Adam Liptak of the New York Times pointed out in April that Kagan “tangle[d] regularly with Chief Justice Roberts, who has emerged as her primary antagonist, frequently criticizing her tactical decisions and trying to corner her at oral arguments.” Tony Mauro, writing for the National Law Journal in May, noted that while Kagan was “confident and comfortable at the podium from day one … at times [she] managed to annoy Chief Justice John Roberts Jr. and leave other justices unsatisfied.”
It’s difficult to convey, in the absence of audio, just how tense some of these exchanges actually were. At the Citizens United argument last fall, Roberts openly criticized Kagan for abandoning one rationale for restricting corporate campaign spending and then pummeled her again in his concurring opinion in the case, dismissing the government’s argument as “at odds with itself.” In an April case, Kagan took the position that U.S. attorneys speak only for their regional offices, not for the attorney general of the United States “That’s absolutely startling,” Roberts replied. “The United States is a complicated place,” Kagan retorted. “I take your word for it,” Roberts snapped back. At the same argument, Kagan responded to a question from Justice Antonin Scalia with a question of her own. Roberts reminded Kagan that “[u]sually we have the questions the other way.” She apologized.
Then Roberts took yet another whack at Kagan in his opinion in Holder v. Humanitarian Law Project, over a statute criminalizing the provision of “material support” to terror groups. Roberts, while handing the victory to Kagan, repeatedly called out the government position for going “too far” and running “headlong into a number of our precedents.” He accused the government, in a footnote, of “failing to develop” an argument it made only in passing. One got the sense that the chief justice had given the solicitor general’s office a reluctant grade of C for this past term.
It’s foolish to read too much into just six arguments before the high court. The tension between Kagan and Roberts does not mean Kagan was not an able oral advocate, as some have argued. Others say Roberts was no harder on Kagan than he was on other advocates; this happens to be a particularly hyperactive bench, and nobody makes it through oral argument without a few bumps and bruises. (As Jeff Toobin has argued, Roberts is tough on virtually everyone who comes before him.) But perhaps because the court typically defers to the solicitor general, or perhaps because the chief justice’s criticisms have been aimed at both Kagan’s tactics and substance, one comes away with the feeling that he thinks she was doing it all wrong. Roberts was, remember, one of the finest oral advocates most of us have ever seen at the court. Perhaps that’s why Kagan’s oral advocacy seems to have frustrated him. The possibility that there may be a rocky start between Kagan and the chief raises a thousand interesting questions for the court’s future.
For one thing, this is decidedly the chief justice’s court. According to the court-tracking gurus at SCOTUSblog, in this past term Roberts was in the majority in 91 percent of the cases decided on the merits. His friction with Kagan, if it really exists, will thus become the court’s friction. It’s also true that small changes in court personnel can have an enormous impact. The justices pride themselves on their cordial, collegial relationship. Yet many have confessed that every new justice reboots everything. New justices, no matter who they are, make existing justices all kind of fluttery: Each replacement at the court, Roberts told C-SPAN last fall, is “unsettling.” Justice Clarence Thomas added that “it changes the whole family,” while Justice Anthony Kennedy said that adding new members is always “stressful.” Now imagine how much more stressful a changeover would be when there’s already been a little stress in the relationship.
Even if the slings and arrows of oral argument are readily put behind them come October, Kagan and Roberts will still be worth watching in the coming years precisely because they make up two sides of the same coin: They are savvy, ambitious, and brilliant, as well as charming, outgoing, and persuasive. Each of them swanned his or her way through the confirmation hearings with smiles and jokes. Each masks strongly held views under a casual, easygoing demeanor. As Kagan proved at her confirmation hearings, she isn’t one to defer to authority; she’d rather push back and win or lose it on the merits. Roberts is precisely the same. That may have been a recipe for disaster when Kagan and Roberts were on opposite sides of the same bench. But it becomes an even more fascinating pairing once they’re both on it.