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Stints in Court May Yield Clues to a Style

By ADAM LIPTAK, Published: April 14, 2010

WASHINGTON — Two weeks ago, Solicitor General Elena Kagan, a leading contender for appointment to the Supreme Court, presented her sixth argument there. She bantered easily with the justices, and she seemed to have a special rapport with Justice Antonin Scalia, at one point responding to a question from him with one of her own.

Justice Scalia’s reply suggested she had crossed a line. “Well, I’m not making the argument,” he said, declining to answer her question.

Chief Justice John G. Roberts Jr., who has had some testy exchanges with Ms. Kagan over the last seven months, made the point more sharply.

“Usually we have the questions the other way,” he said.

“I apologize,” Ms. Kagan replied.

Ms. Kagan, a former dean of the Harvard Law School, has never served as judge and so has no paper trail of judicial opinions. Her academic writings are dense, technical and largely nonideological. But a look at her service as solicitor general, the federal government’s top appellate lawyer, provides unusually direct insights into how she would interact with her new colleagues were she appointed to the court.

Ms. Kagan appears popular with the justices, and they seem to appreciate her candor, quick mind and informal style. But she tangles 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. In February, for instance, at an argument about a law making it a crime to provide material support to terrorists, Chief Justice Roberts tussled with Ms. Kagan over what he called a shift in the government’s position.

“I looked at your briefs,” he said. “I didn’t see the argument we’ve spend a lot of time talking about, which is that the legitimate activities allow the illegitimate activities to take place.”

Ms. Kagan replied with a sort of apology. “If we didn’t emphasize it enough,” she said, “I will plead error.”

The concession was typical of Ms. Kagan, who has a brisk, businesslike style and is unwilling to be distracted by side issues that do not advance the government’s interests.

Ms. Kagan’s first argument in the Supreme Court was in September in Citizens United, the big campaign finance case that gave rise to a 5-to-4 decision in January allowing corporations to spend freely in candidate elections. The decision is quite unpopular among Democrats, and President Obama alluded to it in remarks on the retirement of Justice John Paul Stevens last week.

Mr. Obama said he would appoint a justice who “knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”

But Ms. Kagan did not press that point in the Supreme Court. Indeed, she abandoned that rationale, one that had supported the central precedent at issue in the case, Austin v. Michigan Chamber of Commerce, a 1990 decision that upheld restrictions on corporate political spending.

Ms. Kagan instead offered two other rationales: the possibility that independent corporate spending would corrupt or appear to corrupt politicians and the possible misuse of shareholders’ money. In her briefs and in arguing her point, Ms. Kagan threw overboard the interest mentioned by President Obama, that the government may limit corporate speech to make sure it does not distort the marketplace of political ideas. “We do not rely at all on that,” she said at the argument.

To be sure, she would have faced an uphill fight in arguing the point, as the Supreme Court had recently been skeptical of the notion that the First Amendment permitted the government to try to level the playing field among different sorts of speakers.

Chief Justice Roberts pressed Ms. Kagan on the shift in rationales. “You are asking us to uphold Austin on the basis of two arguments, two principles, two compelling interests we have never accepted in the expenditure context?”

“Fair enough,” Ms. Kagan said.

The chief justice discussed Ms. Kagan’s changed approach in January in his concurrence in the Citizens United decision, which overruled Austin.

Justice Scalia’s reply suggested she had crossed a line. “Well, I’m not making the argument,” he said, declining to answer her question.

Chief Justice John G. Roberts Jr., who has had some testy exchanges with Ms. Kagan over the last seven months, made the point more sharply.

“Usually we have the questions the other way,” he said.

“I apologize,” Ms. Kagan replied.

Ms. Kagan, a former dean of the Harvard Law School, has never served as judge and so has no paper trail of judicial opinions. Her academic writings are dense, technical and largely nonideological. But a look at her service as solicitor general, the federal government’s top appellate lawyer, provides unusually direct insights into how she would interact with her new colleagues were she appointed to the court.

Ms. Kagan appears popular with the justices, and they seem to appreciate her candor, quick mind and informal style. But she tangles 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. In February, for instance, at an argument about a law making it a crime to provide material support to terrorists, Chief Justice Roberts tussled with Ms. Kagan over what he called a shift in the government’s position.

“I looked at your briefs,” he said. “I didn’t see the argument we’ve spend a lot of time talking about, which is that the legitimate activities allow the illegitimate activities to take place.”

Ms. Kagan replied with a sort of apology. “If we didn’t emphasize it enough,” she said, “I will plead error.”

The concession was typical of Ms. Kagan, who has a brisk, businesslike style and is unwilling to be distracted by side issues that do not advance the government’s interests.

Ms. Kagan’s first argument in the Supreme Court was in September in Citizens United, the big campaign finance case that gave rise to a 5-to-4 decision in January allowing corporations to spend freely in candidate elections. The decision is quite unpopular among Democrats, and President Obama alluded to it in remarks on the retirement of Justice John Paul Stevens last week.

Mr. Obama said he would appoint a justice who “knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”

But Ms. Kagan did not press that point in the Supreme Court. Indeed, she abandoned that rationale, one that had supported the central precedent at issue in the case, Austin v. Michigan Chamber of Commerce, a 1990 decision that upheld restrictions on corporate political spending.

Ms. Kagan instead offered two other rationales: the possibility that independent corporate spending would corrupt or appear to corrupt politicians and the possible misuse of shareholders’ money. In her briefs and in arguing her point, Ms. Kagan threw overboard the interest mentioned by President Obama, that the government may limit corporate speech to make sure it does not distort the marketplace of political ideas. “We do not rely at all on that,” she said at the argument.

To be sure, she would have faced an uphill fight in arguing the point, as the Supreme Court had recently been skeptical of the notion that the First Amendment permitted the government to try to level the playing field among different sorts of speakers.

Chief Justice Roberts pressed Ms. Kagan on the shift in rationales. “You are asking us to uphold Austin on the basis of two arguments, two principles, two compelling interests we have never accepted in the expenditure context?”

“Fair enough,” Ms. Kagan said.

The chief justice discussed Ms. Kagan’s changed approach in January in his concurrence in the Citizens United decision, which overruled Austin.

Continues @ NYTimes.com

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I like her style.   [I also liked what I read of Chief Justice Roberts; he has a great sense of humor!].  I think Kagan would do great and would fit in fine!

Hope to read similar article on Justice Wood from Chicago. If any of you find such article, please post. Thanks.