Elena Kagan: Advice to a New Justice
What can Elena Kagan expect when she takes her seat on the Supreme Court on Monday? Seth Stern and Stephen Wermiel, authors of a new biography of Justice Brennan, offer a few tips.
As only the sixth former clerk and third solicitor general ever to move directly to a seat on the Supreme Court, Elena Kagan hardly needed a map when she moved into her new chambers this summer.
Still, any new justice can find the adjustment difficult, no matter how much time they previously spent at the nation’s highest court. It is a pattern we saw repeated as we studied a half-century of Supreme Court history for a biography of the late Justice William J. Brennan, Jr.
So, if it’s not too presumptuous for two authors who have gotten no closer to the justices’ bench than the press box to offer some advice, here are a few observations about the transition as the court begins its new term:
Get Used to the Quiet
Many new arrivals who, like Kagan, hadn’t served as a judge before joining the court, find the transition particularly jarring. Harold Burton, a former senator, compared exchanging a big staff and constant callers for the quiet halls of the Supreme Court as like going “directly from a circus to a monastery.” Arthur Goldberg, who had previously served as secretary of Labor, complained, “The secretary’s phone never stops ringing; the justice’s phone never rings—even his best friends don’t call him.” William H. Rehnquist found life at the court so isolating he unsuccessfully pressed for a coffee hour after oral arguments and organized a skit at the court’s Christmas party gently spoofing a few of his senior colleagues.
First Impressions Matter
Warren Burger almost immediately managed to infuriate several of his colleagues in his first months as chief justice in the summer of 1969. He plotted to put their conference room to his personal use as a ceremonial office to host visiting dignitaries. Burger’s predecessor had gone out of his way with his attempts to stay merely first among equals, embarrassed to be the only justice at the time provided with a government car and vigorously opposed to increasing the pay supplement the chief justice received. Burger, by contrast, seemed intent on trying to turn the justices’ inner sanctum into his personal annex. The grumblings among his new colleagues prompted Burger to back off, but only partway. He still moved an antique desk into the conference room for his own use, the first of many actions on his part that wound up alienating his colleagues across the ideological spectrum.
Your Colleagues May Infuriate You
For most of his 34-year-long tenure, Justice Brennan went out of his way to help new justices adjust to life at the court. But he uncharacteristically managed to alienate Sandra Day O’Connor after she arrived in 1981. Brennan and his clerks drafted a particularly sharp dissent to one of O’Connor’s early opinions dripping with anger and filled with acerbic asides. He came to regret one literary flourish in particular. In a not-so-subtle nod to Rose v. Lundy, a case from a few weeks earlier in which O’Connor authored the majority opinion, Brennan wrote "sic transit Gloria Lundy!”—a play on the Latin phrase sic transit Gloria mundi which translates as “nothing on earth is permanent.” As if that was not enough, the next sentence carried the pun further. “In scarcely a month, the bloom is off the Rose.” The language offended O’Connor and fed a distrust of Brennan which lingered throughout the nine terms they served together.
Avoid Stridency—or Don’t
Many new justices try to avoid writing or joining overly caustic opinions that might alienate their new colleagues. That was the case with John Paul Stevens when he arrived in 1975. After reading one of Brennan’s particularly harsh dissents, Stevens replied, “although I agree with your analysis and think you have written an excellent and persuasive opinion, I am reluctant to join it only because I am not sure that I completely share some of your extremely strong criticism of other decisions of the court.” Not everyone is equally skittish. Antonin Scalia’s aggressive style on and off the bench after joining the court in 1986 left older colleagues taken aback. Right from the start, Scalia often dominated oral arguments by frequently interrupting with tough questions, and clerks in other chambers almost immediately dubbed the short, sharply worded memos he circulated laying out his views of cases “Ninograms.”
The Job Can Ruin Friendships: At the time of Harry Blackmun’s nomination in 1970, reporters seized on his close ties to Burger, whom he had been friends with since childhood back in Minnesota. Blackmun had been best man at Burger’s wedding and even wired him money when he ran out of cash on his honeymoon. But relations between these two justices dubbed “the Minnesota Twins,” soon deteriorated once they served together on the court. Even when two justices maintain a warm relationship—such as Scalia and Ruth Bader Ginsburg who served together on the U.S. Court of Appeals for the D.C. Circuit and continue to attend the opera together—that doesn’t mean they’ll vote together.
It can take a long time to become influential. Brennan enjoyed some unusually choice opinion assignments in his first term thanks to Chief Justice Earl Warren. But it wasn't until five years later when Goldberg replaced Felix Frankfurter that his liberal bloc finally had its fifth vote. Hugo Black, who joined the court in 1937, had waited a quarter century for that moment. The often glacial pace of change can prove particularly frustrating to former clerks who return as justices. “The same issues that were here in 1947 are still here and Hugo still runs the court,” Byron White lamented when he came back as a justice in 1962, 16 years after his clerkship.
Brace for Backlashes
Don't be surprised if some of your opinions anger the public. Shocked at how angry his decision in one Communist subversion case was received at the end of his first term, Brennan would later observe, "The winds of criticism and controversy that swirl around the court in Washington are generally of a higher velocity than those blowing in state capitals—and the temperature is hotter." Kagan, likely learned that lesson well even before joining the court during her time as a clerk and later as a senior aide in the Clinton White House. And she got a reminder earlier this year when President Obama scolded the justices during his State of the Union address for their decision in the Citizens United campaign finance case, one she had argued and lost.
Seth Stern, a Harvard Law School graduate, has been a reporter for the Congressional Quarterly since 2004.
Stephen Wermiel, for 12 years The Wall Street Journal's Supreme Court reporter, teaches constitutional law at American University Washington College of Law.