Kagan on how the Supreme Court decides


Kagan recalled the first time she attended one of the conferences, limited to the nine justices, where each member says how he or she would rule in cases. Dealing with a major case, the members each gave his or view and, within 10 minutes, the tentative outcome was set. Then the justices spent 40 minutes on a less-noteworthy case before they finally arrived at a point where they could say, “O.K., we could do the case this way.”

At first, Kagan said, it seemed crazy to her to spend so much more time on a lesser case, but then she realized it made sense, given the established opinions individual justices had, the process for reaching a decision, and the prospects for persuading others. “Some cases, you’re not going to persuade each other,” she said. “But there are a lot of others where you can.”

Her description indicates that, when it comes to a case like the health care overhaul, there may not be much space for justices to persuade one another at the conference. That does not, however, mean that some elbow-twisting couldn’t happen later in the deliberations, as the justices begin drafting opinions. As one former Supreme Court clerk told me, it “It wouldn’t be unprecedented, on a case like this, for two justices to have a sort of walk in the woods” during the process.

Less pertinent, but still entertaining, Kagan also shared that she has gone hunting with her colleague Justice Antonin Scalia, who has a large animal head in his chambers named Leroy:

“Justice Scalia has made a huntress out of me,” she joked. She said the two are planning to go hunting in Montana in October. In his chambers, Scalia has a large animal head he calls Leroy, Kagan said. “He insists I’m going to shoot myself an antelope,” Kagan said. “Justice Scalia insists I need my own Leroy.”


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