Newest justice jumps right in: On the bench, Justice Elena Kagan is anything but shy

By Kimberly Atkins

The Daily Record Newswire

Justice Elena Kagan has only been seated on the U.S. Supreme Court's bench for a few months, but she's already proven one thing beyond a doubt: she is not shy.

Her first oral arguments as a Supreme Court justice took place on Oct. 4 in the case of Ransom v. FIA Card Services, N. A. Kagan waited about 17 minutes before she asked her first question - similar to the approach taken last year by Justice Sonia Sotomayor, who waited about 20 minutes on her first day before speaking.

But unlike Sotomayor's early questioning style of deferentially yielding to the more senior justices, Kagan was quick to jump right into the fray, asking 10 questions. At one point during that first case, she even finished Justice Ruth Bader Ginsburg's question.

''Is there any other one that works this way?'' Ginsburg inquired of Las Vegas attorney Christopher P. Burke about a federal tax provision allowing the deduction of car ownership costs. ''It doesn't matter whether you have the expense, in fact.''

''For example, Mr. Burke,'' Kagan interjected, ''what would happen if you didn't actually have any out-of-pocket costs?''

Kagan's enthusiasm during questioning has even led her to interrupt other justices' lines of reasoning.

For example, during arguments in Snyder v. Phelps, Kagan, who was still in her first week on the bench, tried to jump in during an exchange between Justice Stephen Breyer and attorney Sean E. Summers about whether the legal standard established in Hustler v. Falwell applied in cases where protesters demonstrated at military funerals.

''I think the standard should be Hustler v. Falwell generally does not apply,'' Summers said.

''Hustler v. Falwell is defamation,'' Breyer said.

''I thought Hustler v. Falwell was intentional infliction of emotional distress,'' Summers said.

''Intentional infliction, okay, good,'' Breyer said, gesturing to Summers to continue his answer. ''Thank you. Go ahead.''

Kagan tried to jump in.

''Mr. Summers--,'' she began, before Breyer stopped her.

''Answer then, please,'' Breyer said to Summers, as Kagan sat back.

But Kagan's assertive style during oral arguments does not seem to be alienating her from the other justices.

In fact, more often than not, she builds upon the arguments of the other justices.

And they return the favor.

''The facts that Justice Kagan gave you would never constitute an actionable claim against a prosecutor,'' Justice Sotomayor said to Louisiana Department of Justice attorney Stuart K. Duncan during oral arguments in Connick v. Thompson in October. ''Is that your position in this case?''

''It would have to fall on the pattern side because the general Brady situation is unlike'' that, Duncan answered.

Sotomayor had a follow up, but Kagan's enthusiasm was again apparent as she beat Sotomayor to the punch.

''So what do you...'' Sotomayor began.

''Could I add to my hypothetical, then?'' Kagan interjected.

Kagan shows no hesitation about holding lawyers' feet to the fire.

During oral arguments in Janus Capital Group v. First Derivative Traders, she was vocal, asking dozens of questions during the course of the hour and often engaging in lengthy dialogue with the attorneys.

''Well, Mr. Perry, who wrote the relevant statements?'' Kagan asked during arguments in the case, which considered whether a claim may be stated against a service management company for misstatements made about the mutual fund it manages.

''Your Honor, the Fund made the statements to the public,'' said attorney Mark A. Perry.

''I understand that they were in the Fund's prospectus, but who wrote them?'' Kagan pressed.

''They were drafted by lawyers for the Fund,'' Perry said.

''Who paid those lawyers?'' Kagan asked.

''The advisor paid the lawyers' salaries,'' Perry answered.

''So [management company] JCM paid the lawyers?'' Kagan said.

''Correct, Your Honor.'' Perry said.

''And so it was JCM's lawyers who wrote the prospectus, including the relevant statements here, the asserted misrepresentations,'' Kagan concluded, seeming to have found the answer she was looking for.

Being the newest and youngest justice does allow Kagan to help out her fellow justices with pop culture references.

During oral arguments in Schwarzenegger v. Entertainment Merchants Association, which looked at a California law could ban the sale of violent video games to minors, Kagan referred to the game ''Mortal Combat,'' which she described as ''an iconic game, which I am sure half of the clerks who work for us spent considerable amounts of time in their adolescence playing.''

''I don't know what she's talking about,'' said Justice Antonin Scalia.

Published: Mon, Dec 27, 2010

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