Kagan: 'Too Soon' for a Bobblehead

This article first appeared in the February 12, 2014, issue of the National Law Journal’s Supreme Court Brief.

*Photo credits below

Speaking to an audience in Washington, D.C., Justice Elena Kagan recently reflected on her future legacy—and a possible Kagan bobblehead.

The occasion was a February 5 luncheon where Judge Sri Srinivasan of the U.S. Court of Appeals for the D.C. Circuit was honored with the J. Reuben Clark Law Society’s Rex Lee Advocacy Award.

During a question and answer period, I asked Kagan how she would like to be remembered and, on a related, but more whimsical note, what she would like on her future bobblehead. The popular figures of Supreme Court justices, distributed by the Green Bag law journal, feature visual references to justices’ important opinions.

“I don’t have ambitions to lay down some marker in a particular field of law,” Kagan replied. There is no: “I want to be a great First Amendment person,” or “I want to have a legacy in Fourth Amendment” for her. “I am taking the cases one by one” and trying “to decide [them] as well and honestly as I can.”

Kagan wants her opinions to be clear, persuasive, and “not awful to read.”

And about her bobblehead?

“Too soon, too soon, too soon,” the justice indicated. “I hope that none of the things that I have written [so far] will make the cut” because there has not been “anything significant enough.”

Responding to another question, Kagan recalled a conversation with Srinivasan and former Solicitor General Paul Clement about different argument styles. The three were on a plane, traveling back from the Sixth Circuit.

“I forget whether it was Paul or Sri who said some people heat up a room, and some people cool down a room,” Kagan offered, noting that superb advocates fit in both categories.

Srinivasan is on the cool side, Kagan observed, “incredibly forceful and persuasive” in giving justices the unadorned “scoop.” Clement uses his own effective approach, she pointed out, bringing “electricity” to the podium.

It “is really important for young lawyers to remember when they start developing their own advocacy style, that you can be great in a lot of different ways,” Kagan explained.

Accepting the Rex Lee award, Srinivasan joked that he has gone from being “an appellate advocate wanna be” as a new law graduate to “already an appellate has been with my most recent appointment.”

Srinivasan joined the D.C. Circuit in May 2013, after a distinguished career as an appellate advocate. At the time of his confirmation, Srinivasan was the Principal Deputy Solicitor General, the number two position in the office, once held by Chief Justice John Roberts. The Senate confirmed Srinivasan to the D.C. Circuit by a remarkable 97-0 vote, and he is often mentioned as a potential Supreme Court nominee.

Srinivasan praised the thirteen prior Rex Lee award recipients, who include several past solicitors general and other appellate luminaries, as “the best of the best” and expressed gratitude that he had worked with eleven of them.

Judge Thomas Griffith, Srinivasan’s D.C. Circuit colleague, introduced Kagan at the luncheon. Srinivasan thanked Griffith for giving him a warm welcome to the court and for his example as a judge.

The annual Rex Lee award is named for the late solicitor general who served in the Reagan administration. His son, Senator Mike Lee (R-UT), was at the luncheon.

Solicitor General Donald Verrilli, Walter Dellinger, Maureen Mahoney, and other well-known appellate attorneys also attended.

James Rasband, dean of the J. Reuben Clark Law School at Brigham Young University, introduced Srinivasan and presented the award.

The J. Reuben Clark Law Society is associated with BYU’s law school and its sponsor, the Church of Jesus Christ of Latter-day Saints. Rex Lee served as president of BYU and as its founding law school dean.

*Photo credits: Nicholas Jepsen for the J. Reuben Clark Law Society
1-Justice Elena Kagan during Q&A
2-Judge Sri Srinivasan and Dean James Rasband, BYU Law School, with the Rex Lee Advocacy Award
Hyatt Regency Washington on Capitol Hill

Top Appellate Daily Posts of 2013

Laughter beat caskets for the top Appellate Daily post this year.

Below are the most viewed articles of 2013. Four appeared first in the National Law Journal's U.S. Supreme Court section.

Thanks to everyone for reading in 2013 and for all of the follows, links, retweets, and mentions on Twitter. Happy 2014!

1-Laughtergate: The Day the Laughter Died at SCOTUS
          *Something went awry on the First Monday in October.

2-Circuit Split Watch: Will the Court Bury Casket Cases?
          *David-and-Goliath facts with an important legal issue stoked interest.

3-Justice Breyer and Religion
          *An ill-founded assumption prompted this post.

4-Circuit Split Watch: Patricia Millett's Last Supreme Court Case?
          *Prominent counsel and a second trip to the high court made this case one to watch.

5-Justice Souter: Working in Reverse, by Choice
          *Souter retired from the Supreme Court, but not from judging.

6-Breyer Reacts to Affirmative Action Decision: 'Phew'
          *Would have been a Top 5 list, except this piece came in at #6. One of my favorites to write this year. Candid and fascinating insights from Breyer on strategy.

A 2012 post on how Paul Clement prepares for oral argument is still the all-time champ.

Laughtergate: The Day the Laughter Died at SCOTUS

This article first appeared in the December 16, 2013, issue of the National Law Journal’s Supreme Court Brief.

Laughter can be serious business at the U.S. Supreme Court, especially on the First Monday in October.

As the new term opened this fall, laughter disappeared from argument transcripts and a mild rumpus ensued on social media. Laughter did make a comeback, but not without some unanswered questions.

“When you read Supreme Court argument transcripts,” Justice Elena Kagan explained to a group of Harvard Law School students in September, “they actually tell you when there’s laughter in the Court” and which justice triggered it.

Jay Wexler, a former clerk to Justice Ruth Bader Ginsburg and now a professor at Boston University School of Law, publishes updated laughter counts for each justice at his @SCOTUShumor Twitter feed, along with commentary.

“Ten o’clock,” Wexler tweeted on Monday, October 7. “I guess #SCOTUS has started up. I can feel the laughter coursing through the countryside. If you’re very still, you can too.”

Kimberly Atkins, who also follows Supreme Court laughter, was in the courtroom. From her @DCDicta Twitter feed that morning, Atkins reported that Chief Justice John Roberts, as well as Justices Antonin Scalia, Stephen Breyer, and Samuel Alito had all gotten laughs.

Problem is, when the transcripts went online later that day, the laughter was missing.

Twitter noticed.

Both Wexler and Atkins tweeted about the A.W.O.L. laughter, and Atkins reiterated: “I heard laughs w my own ears. But if it isn’t in the transcript, is it like a tree falling in a forest?”

Other Twitter users, including myself, joined the discussion through comments and retweets.

Laughter at the Supreme Court has a following. To some, it is like box scores, fun to track. To others, it is a digestive aid that helps dull transcripts go down. It is even fodder for scholars, since laughter gives insight into justices’ personalities and Supreme Court dynamics.

Wexler wondered if “they’ve stopped making the notation. Several possible laugh lines in the transcript.”

Not only was the term new that day, but so was the Clerk of the Court, Scott Harris. His predecessor, William Suter, retired over the summer after more than two decades in the position. Had a new, laughter-free day dawned at the Supreme Court?

That afternoon, I contacted Alderson Reporting, which prepares the transcripts. A company representative indicated by telephone the next day that there was not a new policy; however, he did not explain the laughter void. (Responding to a later inquiry for this story, the Supreme Court’s Public Information Office said: “We don’t know why the omission occurred.”)

“Laughtergate deepens,” Atkins tweeted.

The good news is that laughtergate was mostly short-lived. The next day, laughter showed up in a new transcript. The First Monday transcripts remained somber, though. During the next week, I checked for updates several times. Still no laughter.

Another check in early December revealed that the laughter was back: one laugh each for four justices on the term’s first day, consistent with Atkins’ tweet.

When the laughter returned is fuzzy. Neither Alderson nor the Public Information Office provided an exact date. The office did say that Alderson initiated and made the changes as part of its review process.

So, where do the numbers stand now?

After the “laughtergate fix,” as Wexler called it, he tweeted updated numbers for the term, current through the December sitting. Scalia leads with twenty-two laughs; Breyer is not far behind with twenty. Ginsburg and the famously silent Justice Clarence Thomas are tied for last with zero.

“I check sometimes,” Kagan told the Harvard Law students, with a slight grin, speaking of the laughter tallies.

For more justices’ comments on the subject, see Wexler’s collection at his website.

Quote: Laugh, Clown, Laugh!

[W]hen the questions come, I do not rejoice!  I may essay a smile, exude an air of confidence and self-assurance, a certain lightness of the spirit, as if to say "Gee, I'm glad you asked that!"  But, all the time I'm thinking: " . . . I explained that 15 minutes ago, when he was gathering wool, and now I'm never going to get in . . . my Big Punch at the end."  My axiom is "Do not rejoice!  Suffer in false and hypocritical jubilation!  Laugh, clown, laugh!"

Milton S. Gould, Oral Argument Losing Its Appeal, Nat'l L.J., Mar. 23, 1981, at 15, 32 (responding to John W. Davis' article The Argument of an Appeal that encouraged appellate attorneys to "rejoice" when the judges ask questions).