If you watched Elena Kagan’s performance before the Senate Judiciary Committee last month, you probably saw that under the bright lights of public scrutiny, she is quick-witted, conversational, and rarely cowed. But one question that lingers, as the solicitor general prepares to join the highest court in the land, is whether those qualities will help her or hurt her in the darkened marble halls of the Supreme Court.
Kagan’s six outings before the Roberts Court as President Obama’s solicitor general were sometimes uneasy ones. Some court watchers say Kagan—who had never argued a case until the blockbuster Citizens United campaign-finance case last September—was only 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. The New York Times’s Adam Liptak 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 were. During the Citizens United argument last fall, Roberts openly criticized Kagan for abandoning one rationale for restricting corporate campaign spending, 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 only speak for their offices, not the attorney general. “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 breezily reminded Kagan that, “Usually we have the questions the other way.” She apologized. Overwhelmingly, one sensed, the chief justice has given the solicitor general’s office a C this past term.
One hesitates to read too much into just six arguments. It’s certainly not the case that the tension meant Kagan was not an able oral advocate, as some have claimed. Other court watchers insist that Roberts was no harder on Kagan than he was on other advocates; this happens to be a particularly hyperactive bench, and nobody skates through oral argument before the Roberts Court without a few bumps and bruises. But perhaps because the court typically defers somewhat to the solicitor general, or perhaps because the chief justice’s criticisms have been aimed at Kagan’s tactics and positions, one comes away with the feeling that he thinks she’s doing it wrong. And that possibility 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 SCOTUS blog, this past term saw Roberts 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 working relationship. Yet many have confessed that every new justice reboots everything. Roberts told C-Span last fall that each replacement at the court is “unsettling.” Justice Clarence Thomas added that “it changes the whole family,” and Justice Anthony Kennedy opined that adding new members is “stressful.” Now imagine how much more stressful a changeover would be when there’s already been stress in the relationship.
Kagan and Roberts will be worth watching in the coming years precisely because they are two sides of the very same coin: they are each savvy, ambitious, and brilliant, as well as charming, outgoing, and persuasive. As Kagan proved at her hearings, she isn’t one to defer to authority; she’d rather punch back and win or lose her case on the merits. That may have been a recipe for disaster when Kagan and Roberts were on opposite sides of the same bench. It becomes an even more fascinating pairing once they occupy the same turf.