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Kagan’s Seating Marks Supreme Court Milestone, But Poses Recusal Hurdle

October 4, 2010 at 12:00 AM EDT
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The first day of the new Supreme Court term was also the first day on the bench for new Justice Elena Kagan. Women now make up a third of the high court for the first time. Jeffrey Brown talks to three law experts -- Paul Butler, Paul Clement and Marcia Coyle -- about the high-profile cases on the docket for the coming months.

JEFFREY BROWN: Finally tonight: It’s the first Monday in October, and that means it’s the first day of the U.S. Supreme Court’s term.

There are several high-profile cases on the docket, including one that will be argued later this week involving protests during military funerals. But much of the immediate attention is on a new justice, former Solicitor General Elena Kagan, and the fact that women now make up a third of the court for the first time in history.

We look at the new court now with Paul Butler, professor of law at George Washington University and a former federal prosecutor for the Department of Justice during the George H.W. Bush and Clinton administrations, Paul Clement, solicitor general in the George W. Bush administration, and now an attorney in private practice in Washington, and, as always, Marcia Coyle of “The National Law Journal.”

Welcome to all of you.

MARCIA COYLE, “The National Law Journal”: Thank you.

JEFFREY BROWN: Marcia, this term is already historic, even if nothing else happens, right?

MARCIA COYLE: Absolutely, Jeff.

JEFFREY BROWN: You were at the court today. What — tell us what happened.

MARCIA COYLE: Well, it was a usual and an unusual day, usual in that the chief justice formally closed the old term and opened the new term, and unusual because Justice Elena Kagan stepped through the velvet curtains behind the court’s bench and became the third woman to be sitting hearing arguments today at the court.

The courtroom was full. There were a number of spectators from the public, as well as a number of lawyers, who traditionally come to be sworn into the Supreme Court bar.

JEFFREY BROWN: And did she participate? What happened?


JEFFREY BROWN: What do we see?

MARCIA COYLE: She was first out of the gate with a question, as I think Justice Sotomayor was on her first day. But she did ask roughly seven questions in the first hour of arguments.

And then she left, because the second case to be argued involved the United States as a party. And she had been solicitor general at the time participating in that case.

JEFFREY BROWN: All right, that’s a subject I want to get to. But, first, Paul Clement, let me ask you. A new justice always raises questions about how the court will be shaped. What do you look for to know that — the answer to that?

PAUL CLEMENT, former U.S. solicitor general: Well, the old adage is, every time you change one member of the Supreme Court, you get a whole new court.

And I think adding Justice Kagan to the court, I mean, people have focused on the fact that you now have a third of the members are women. It’s also the first time in — since Justice White was on the court that you have a Democratic appointee who held high-level administrative, executive branch positions.

I think there’s a number of different ways in which her presence on the court will change the dynamic of the court and make the dynamic among the justices different from any time previously.

JEFFREY BROWN: And, Paul Butler, one of the questions people are wondering is whether — who steps in for that seat that Justice Stevens had — I mean that position that Justice Stevens had as the champion of liberal causes on the court.

PAUL BUTLER, professor, George Washington University School of Law: And I’m not sure Kagan is the person to do that. She’s more of a moderate.

Stevens was an old-school liberal, and she’s a new-school pragmatist, like the president who appointed her. And it’s important, a lot of progressives think, to have someone who is a left-wing equivalent of Justice Scalia, who is abrasive sometimes, or Justice Thomas, who is committed to this right-wing ideology.

Again, both Justices Sotomayor and Kagan seem to have been selected by the court — by the president in part because they are brilliant, but also because they have great people skills. So the hope I think is that they can kind of rein in some of the right-wing extremism that we see from the chief and other recent Republican appointees.

JEFFREY BROWN: Marcia, you start — we talked about the historic nature of the three women. Clearly symbolic resonance, right?

MARCIA COYLE: Oh, absolutely.

JEFFREY BROWN: Is there a question about a substantive impact of that?

MARCIA COYLE: Well, I think Justice Ginsburg has addressed this, and so has Justice O’Connor in the past. And, in general, they — they would say that it doesn’t make a substantive difference.

But it can make a difference in certain cases. And we have actually seen that. We have seen =- we saw it in the term in which the court took up whether it was reasonable to strip-search a middle school girl.

Justice Ginsburg brought a great perspective to that case, having raised a daughter. Also, I think there have been some political scientists who studied this issue, and they say that female judges often make a difference in sex discrimination cases.

JEFFREY BROWN: You were nodding.

PAUL BUTLER: Sure. You know, three is a magic number when it comes to a group the size of the Supreme Court, because for…

JEFFREY BROWN: It really makes a difference, that number?

PAUL BUTLER: For the first time, yes, there’s a critical mass. So it’s not just Ginsburg speaking for women. We have got three individuals.

But the court has accepted all these corporate cases this year, where they are probably not going to be a feminist point of view. But in issues like civil rights or sex discrimination or privacy, it might really make a difference.

Justice Ginsburg talks about a case where she couldn’t get the men on the court to see why it took so long for a woman who was claiming sex discrimination to bring her case. And Ginsburg said, I know, because I have been there.

Now two of her sister judges have also been there. So, I think it’s good in terms of the process for the court, but it might really lead to some substantive differences in outcomes as well.

JEFFREY BROWN: Let me come back to this question of recusing herself, Justice Kagan, that is, because she has the position that you yourself had as solicitor general.

Does that — and I think it is in a number of cases. You said I think about half the cases, right? Does that have an impact, a practical impact, on the term?

PAUL CLEMENT: Oh, it definitely does, because, in the Supreme Court, a justice recusing herself is not just sort of a simple matter of subbing in another judge, the way it is on the lower courts.

In the way the Supreme Court works, a decision to recuse is really a vote to affirm, because, if the Supreme Court divides 4-4 in a case, it affirms the lower court judgment, whereas, normally, you would take five votes to come out one way or another. So, in that sense, the decision to recuse could have a real impact.

I wouldn’t be surprised to see the justices, in those cases where Justice Kagan is recused, working extra hard maybe to decide the case more narrowly, but to avoid a whole raft of 4-4 results.

JEFFREY BROWN: Do they — do they — go ahead.

MARCIA COYLE: I think, Jeff, it can also have an impact on what cases the justices decide to review. If they know that Justice Kagan may not be able to participate, they may be more careful in what kind of cases they accept.

JEFFREY BROWN: So, they will take that into the consideration?

MARCIA COYLE: I think so.

PAUL BUTLER: I think it’s kind of a geeky legal issue. And it’s cool for us, because we’re legal geeks.


PAUL BUTLER: But Justice Thurgood Marshall was the last solicitor general to be on the court. And he recused himself in a bunch of cases in the first two terms, and now no one remembers that. That’s not the important thing about his great legacy.

So, I think this is a big deal for now. But, in 10 years — Kagan is going to be on this court probably for decades — no one will even remember that this was an issue.

JEFFREY BROWN: All right. So in terms of — now, we’re talking about what kind of difference she will make and the new court will be. Talk a little bit about the term ahead.

Is there a — is there a — you can start, Marcia — is there a particular theme that we see?

MARCIA COYLE: I don’t think there’s a theme, Jeff. Sometimes, you get a theme, like, oh, a big First Amendment term, or there’s an obvious potential blockbuster, like the term in which we had the court interpreting the Second Amendment and whether there was an individual right to have guns.


MARCIA COYLE: Right. Exactly. But, this term, there are a number of potentially significant cases and cases that people can understand and probably will find very interesting. I can think right off the bat of two First Amendment cases, the one you mentioned earlier that’s being argued Wednesday involving the Westboro Baptist minister who has been picketing the funerals of members of the military who died in Iraq or Afghanistan.

There, the family of one fallen Marine sued this minister. And the charge, the allegation was intentional infliction of emotional distress. He won a jury award. But the lower appellate court said this speech is protected under the First Amendment.

There are three cases involving job bias in the workplace that will look at the scope of the laws, protection of employees against retaliation by employers. So, there are a of significant cases. We will also hear a lot about preemption, which again is a…

JEFFREY BROWN: Preemption. Dare I ask?

MARCIA COYLE: Go ahead, Paul. It’s all yours.

JEFFREY BROWN: Or do you see a theme or do you want to explain preemption?

PAUL CLEMENT: Well, I will try to do both, which is, I agree with Marcia that I’m not sure that a theme leaps out from this term’s cases so far. And, in some ways, it’s kind of a quiet term. There’s not a blockbuster.

The court does have four different cases, by my count, addressing this issue of preemption, which is the circumstances in which federal law displaces state law. Often, it’s a state tort law, state cause of action for a remedy for an injury. But, sometimes, as in the Arizona employment case, it’s a state law that tries to provide a remedy for — say, in the Arizona cases, for hiring an illegal immigrant as an employee.

The four different cases the court has, a variety of different circumstances, this is one area where I think Justice Kagan’s recusal will be felt, because, in these issues, the position of the federal government, whether the federal government thinks state law should give way, is a very important ingredient. And the federal government therefore participated in three of these four cases.

JEFFREY BROWN: And just in our last minute, you had mentioned before that there’s a number of corporate cases or business cases, right?

PAUL BUTLER: Sure. You know, last term, the court, in this extraordinarily right-wing ideologue case, said that corporations have First Amendment rights, and they can spend all the money they want to influence the outcome of elections. So, what…

JEFFREY BROWN: Citizens United.

PAUL BUTLER: Yes. So, what I’m looking for is to see the difference that Justices Kagan and Sotomayor make now, because this is a right-wing activist court that hasn’t shown a whole lot of respect for precedent or for minimalism.

So, if we see the court now showing a little bit more respect for the settled precedent and not making such sweeping rulings, that will mean that Justices Kagan and Sotomayor are making a difference.

JEFFREY BROWN: All right. Paul Butler, Paul Clement, and Marcia Coyle, as always, thank you, all three, very much.


PAUL BUTLER: Thank you.

PAUL CLEMENT: Thank you.