Supreme Court Justice Elena Kagan made headlines last week by discussing her hunting exploits with her colleague Antonin Scalia.
But in her talk at the Aspen Ideas Festival, she made other comments of interest to court-watchers, as did Chief Justice John Roberts Jr. and Justice Stephen Breyer in other public appearances after the court term ended.
Breyer spoke to the Aspen group separately from Kagan, while Roberts’ remarks were made before the biennial conference of the U.S. Court of Appeals for the Fourth Circuit.
What follows are some of the highlights from these discussions.
- Explaining the hot bench: Roberts acknowledged that “we do overdo it” when it comes to asking advocates questions at oral argument. Recent appointees to the court, he noted, have been “more active than the ones they replaced.” Another “excuse.” as he termed it, for the hot bench, is that “we don’t talk about cases before argument,” so that justices are eager to lay down some markers and “debate each other through counsel.”
- Coping with the hot bench: Roberts advised advocates to “keep track of the questions” and not “show any type of impatience” with the intense barrage. He also suggested that when the debating and interrupting is hot and heavy, an effective strategy for lawyers might be to “stop talking for awhile,” in the hope that the justices will eventually realize that “someone is there waiting.” Roberts quickly regretted that suggestion, predicting that lawyers will take heed next term and “stand there and say nothing.”
- Justices are generalists: In discussing his favorite lesser-known rulings of the past term, Roberts mentioned the bankruptcy case Bullock v. BankChampaign. The case turned on the definition of “defalcation” in bankruptcy law. “I had not heard the word before,” Roberts confessed, confirming that even experienced justices don’t know every dusty corner of the law. Roberts added, “It sounds like throwing a falcon out the window,” which suggests that Roberts does know the meaning of the similar-sounding word “defenestration.”
- Déjà vu on surveillance programs: In his Aspen talk, Breyer suggested he was unsurprised by recent headlines about National Security Agency surveillance of phone and email communications. “When I read these articles, I didn’t find too much I hadn’t read last November,” Breyer said, an apparent reference to the briefing in the Supreme Court case Clapper v. Amnesty International, which found that plaintiff human rights and legal groups had no standing to challenge NSA programs. In his dissent in the case, Breyer reviewed legislation allowing for broad surveillance programs and surmised that there was a “high probability” that such surveillance was planned or already underway.
- Unanimity is boring: Breyer said the court is in substantial agreement more often than the public thinks, with a unanimity rate last term of 60 percent. But “unanimity is boring,” Breyer said, and “newspapers want to sell newspapers,” so they focus on 5-4 splits instead. “The court is trying hard to pull together among people who have quite different beliefs,” Breyer said.
- Siding with law enforcement: Breyer was asked why he voted against criminal defendants in a number of search and seizure and criminal cases. On Maryland v. King, which allows police to take DNA samples from arrestees to see if they are linked to unrelated crimes, Breyer shrugged and said he simply felt that DNA sampling is “more accurate and less obtrusive” than fingerprints and mug shots, which have long been permitted.
- Kagan on her colleagues: “I love Justice [Clarence] Thomas, she told the Aspen audience. “He’s an incredibly friendly and gregarious man” with a booming laugh that allows you to “hear him coming two blocks away.” She had high praise for Roberts as a “great chief justice, so smart, so prepared, incredibly collegial, very kind.” Kagan said there are “true and genuine friendships” among the justices, though she allowed that “we maybe need a little vacation from each other” during the summer recess.
- Justices just wanna have fun: Kagan acknowledged that she snuck in a reference to a Tommy Tutone song in the American Trucking Associations v. Los Angeles decision by using the phone number 867-5309 (the title of one of the group’s songs) in her majority opinion. “You have to amuse yourself when you write these opinions,” she said sheepishly.
- Pro-business court: Asked if the current court is biased toward business, Kagan said, “None of us decide cases based on who the parties are … I think the people look at the individual case.” But, she continued, “I do think there is a majority of the court that has a set of legal views that provide some significant relief from both federal and state regulation.”
Contact Tony Mauro at firstname.lastname@example.org.