Is the Supreme Court’s Fate in Elena Kagan’s Hands?
The Supreme Court of the United States performs its duties with a theatrical formalism. Every session opens with the Marshal of the Court, in the role of town crier, calling out “Oyez! Oyez! Oyez!” and “God save the United States and this Honorable Court!” Even when the nine Justices meet privately, once or twice a week, to discuss cases “in conference,” there is a rigid protocol. In order of seniority, they reveal how they are likely to vote; nobody may speak twice until everyone has spoken once. The most junior Justice goes last. She or he takes notes, by hand, on what is discussed and decided, since clerks (and laptops) aren’t allowed in the room. If there is a rap on the door, because, say, one of the Justices has forgotten his glasses, the junior Justice has to get up and answer it. Elena Kagan occupied this role for seven years—until 2017, when President Donald Trump appointed Neil Gorsuch to the Court. During one term, she had injured her foot and was wearing a bootlike brace, but whenever someone knocked she dutifully hobbled over. Kagan, who is as amused by the everyday absurdities of institutions as she is respectful of them, likes to share that anecdote with students. In 2014, she told an audience at Princeton, “Literally, if there’s a knock on the door and I don’t hear it, there will not be a single other person who will move. They’ll just all stare at me.”
The writing of opinions has its own fine-grained traditions, and the slightest variation makes an impression. When a Justice authors an opinion dissenting from the majority, he or she usually closes it by saying, “I respectfully dissent.” When Antonin Scalia, who died in 2016, was especially exercised by majority rulings, such as one that struck down state sodomy laws, he omitted the respectful bit and just said, “I dissent.” That registered as a big deal. Ruth Bader Ginsburg tends to use the “respectfully dissent” sign-off, but she has a collection of decorative collars that she wears over her black robe, and whenever she reads a dissenting opinion from the bench she dons an elaborate metallic version that glints like armor.
Last term, Kagan read from the bench a dissent in a case about partisan gerrymandering. Her dissent ended with a defiance of form and tone that was unusual both for her and for the Court. Kagan declared that the majority was “throwing up its hands” and insisting that it could do nothing about the redrawing of voting districts, even when the results were “anti-democratic in the most profound sense.” She closed by saying, “With respect, but deep sadness, I dissent.” As she read those lines, adding the names of the three Justices who joined her—Ginsburg, Sonia Sotomayor, and Stephen Breyer—her voice vibrated with emotion. Stephen Vladeck, a constitutional-law professor at the University of Texas at Austin, told me, “We’re used to acerbic attacks by Justices on one another—we’re used to sharp words. But not to ‘I feel bad,’ and not to melancholy.”
Kagan, who is fifty-nine and was appointed by President Barack Obama, started her tenth term this October. Since joining the Court, which is led by Chief Justice John Roberts, she has maintained a fairly low public profile. A 2018 C-span poll asked respondents to name a sitting Supreme Court Justice, and only four per cent mentioned Kagan, putting her just ahead of Samuel Alito (three per cent) and Breyer (two per cent). Ginsburg, by contrast, is the Notorious R.B.G., the cynosure of an ardent fandom and the subject, recently, of both an Oscar-nominated documentary and a gauzy feature film about her early career, starring Felicity Jones. In 2013, Sotomayor published a best-selling memoir, “My Beloved World,” and this year she released a children’s book inspired by the challenges she faced as a child with diabetes. The title sounds like a personal credo: “Just Ask!: Be Different, Be Brave, Be You.” Kagan is not a meme or an icon, and she is not a likely guest on “Good Morning America,” where Sotomayor turned up earlier this fall, promoting her book before a studio audience full of kids. I live in Washington, D.C., and last year three trick-or-treating tweens showed up on my doorstep, lace-collared and bespectacled, dressed as R.B.G.; I would’ve been shocked if anyone had come as Kagan. To many Americans, she’s something of a cipher.