It’s rare that the Supreme Court’s youngest and newest justice, Elena Kagan, makes a misstep during oral arguments at the court.
It’s even rarer that the court’s oldest and most sober-minded justice, Ruth Bader Ginsburg,says something that gets a laugh.
But both things happened Monday as the court heard a case about whether Congress had intruded on the president’s ability to set foreign policy with a 2002 change in passport policy. Congress wants to allow those Americans born in Jerusalem to list their birthplace as “Israel” if they so choose. The State Department says it has to be “Jerusalem” only, to avoid taking sides in a never-ending Mideast conflict over sovereignty of the ancient city.
Kagan said if Congress weren’t trying to make a foreign policy statement, it would have given the choice of listing “Palestine” as well as “Israel.”
Nathan Lewin, representing two Americans whose son was born in Jerusalem, said the law provides for listing Palestine so long as the person was born before 1948, when Israel became a state.
“Well,” said Kagan, who was born in 1960, “you have to be very old to say Palestine.”
Without missing a beat, Ginsburg, who was born in 1933, replied:
“Not all that old.”
Kagan joined in the courtroom’s laughter.
For the record--and for the first time--the court now has a majority of justices born in 1948 or later.