Before Kagan, one would have looked in vain through hundreds of years of Supreme Court opinions for the phrase “loosey-goosey.”
As the junior justice, she was assigned to write opinions in her share of forgettable cases — she told those in the courtroom one day that her summary of a decision would be best followed by a person who had a law degree and several cups of coffee. But she made her views clear elsewhere.
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In two cases, she wrote powerful dissents that displayed a strong opposition to government efforts that aid religion and a lengthy defense of campaign finance laws enacted to remove corruption from politics.
In both, she represented the liberal side of the court. She received plaudits for her crisp writing and uncompromising language, and a few questions about whether she was too brash for a rookie.
Kagan declined an interview request for this story, but she told her questioner at the Aspen event that she viewed writing opinions the same way she approached teaching as a law professor.
The goal is to “figure out how to communicate complicated ideas to people who know a lot less than you do about a certain subject,” Kagan said, adding she looks for “vivid ways of explaining that will stick with people.”
So she fills her opinions and dissents with examples and comparisons. “Imagine two states, each plagued by a corrupt political system,” she wrote in her campaign finance dissent.
She also was tough and sarcastic in her dissents; Cornell law professor Michael Dorf called it “channeling her inner-Scalia,” referring to the senior justice’s famously acid-tipped pen. Dorf thought it was at times the wrong tone for Kagan in her first year. “It struck me as her saying, ‘Hey, I can be one of the boys.’ ” he said. But he acknowledges that others disagree.
For instance, in the campaign finance dissent, she said her colleagues on the other side thought that they had found a smoking gun. “But the only smoke here is the majority’s, and it is the kind that goes with mirrors,” Kagan wrote.
When her interviewer at Aspen read that line, the audience laughed and applauded. Kagan said: “You know, listening to that, I’m not sure I would have written it that way again.”
The majority view in that case was written by Roberts. And when Kagan chose to summarize her dissent from the bench — a rare move even rarer for a rookie — their point-by-point arguments resembled the opening round between two people identified early in their careers for their potential.
Roberts and Kagan are something of a pair: ideological opposites who possess similar Ivy League educations and intellects; potential coalition builders on a splintered court and writers who seem to strive to explain their jurisprudence to those beyond the walls of the Supreme Court.
“I think it fair to say that they are doppelgangers of a sort,” said former acting solicitor general Neal Katyal, who was Kagan’s deputy and has argued before Roberts.
He calls them “two of the most hard-working people in a town of hard workers. They take the job, and themselves and each other, very seriously.”
Roberts has publicly praised Kagan and Kagan routinely says the chief justice, who as a lawyer argued frequently before the court, “may have been the best oral advocate in the history of the Supreme Court.”
Her friend Klain said that while her ability to turn a phrase may remind some people of Scalia, her opinions read more like those of Roberts: “crisp and clear, with a well-articulated argument for the opinion’s point of view.”
“I think we will see them going at it for quite some time,” Dorf said, not with “personal nastiness” but “intellectual grappling.”
Lazarus said it is “in her blood” for Kagan to want to be a leader on the court.
Kagan said that the most valuable preparation for being on the court was the year she spent as solicitor general, which is the government’s chief lawyer before the court.
“You’re not deciding the cases but you’re focused all the time on the Supreme Court,” she said at the Aspen Institute gathering. “Your job is to try to figure out how to persuade nine Supreme Court justices to take a particular position. And now my job is to figure out how to persuade eight.”
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