Roberts V. Kagan

Article excerpt

Byline: Dahlia Lithwick

Will there be friction on the court?

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 --c 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. …