U.S. Supreme Court

Roberts and Kagan Tangled in Oral Arguments. Will It Affect Court Relationship?


Chief Justice John G. Roberts Jr. sometimes appeared exasperated with Elena Kagan during the six cases she argued before the Supreme Court as solicitor general, raising questions about potential friction if she wins confirmation this week and becomes the newest justice.

Slate notes Kagan’s “sometimes uneasy” history at the court, pointing to a New York Times report that Roberts had emerged as Kagan’s “primary antagonist, frequently criticizing her tactical decisions and trying to corner her at oral arguments.”

Slate illustrates with an example from an oral argument in which Kagan took the position that U.S. attorneys speak only for their regional offices, not for the U.S. attorney general.

Roberts: “That’s absolutely startling.”

Kagan: “The United States is a complicated place.”

Roberts: “I take your word for it.”

At another point in the argument, Kagan responded to a question from Justice Antonin Scalia with a question of her own. “Usually we have questions the other way,” Scalia said, bringing an apology from Kagan.

Says Slate, “Even if the slings and arrows of oral argument are readily put behind them come October, Kagan and Roberts will still be worth watching in the coming years precisely because they make up two sides of the same coin: They are savvy, ambitious, and brilliant, as well as charming, outgoing, and persuasive. Each of them swanned his or her way through the confirmation hearings with smiles and jokes. Each masks strongly held views under a casual, easygoing demeanor. As Kagan proved at her confirmation hearings, she isn’t one to defer to authority; she’d rather push back and win or lose it on the merits. Roberts is precisely the same.”

Hat tip to Sentencing Law and Policy.

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