Justice Kagan describes workings of court to students

September 27, 2012 By Larry O'Dell Associated Press
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U.S. Supreme Court Justice Elena Kagan gave University of Richmond law school students and faculty a firsthand account of the inner workings of the nation’s highest court last week, covering topics ranging from the influence and role of the justices’ clerks to her own opinion-writing style.

Kagan did not discuss any cases now before the court during a one-hour appearance that was billed as a conversation with dean Wendy Perdue in the law school’s packed moot courtroom.

Instead, the discussion began with Kagan’s background as a lawyer’s daughter  “I never thought what my father did was very interesting,” she admitted — before moving on to how the court operates and her own efforts to write opinions in plain language understandable to a broad audience.

In response to one of Perdue’s questions, Kagan said an essential duty of the justices’ clerks is helping choose the approximately 75 cases the court will consider annually from among 8,000 to 9,000 petitions. She said she also discusses cases with clerks before and after arguments because she wants to hear a wide range of views, and her opinions are written from a first draft provided by a clerk.

“I know the clerks improve my work,” she said, but she added: “They are by no means junior varsity judges.”

Kagan said that while “all of us in the abstract would say we should take more cases,” she doesn’t believe many important ones are overlooked.

Perdue asked Kagan about the court’s reputation as “a hot bench,” which means the justices ask a lot of questions during oral arguments. She said the court can overdo it at times, but for the most part the vigorous questioning is good because the court doesn’t benefit from hearing a lawyer repeat points made in a written brief.

Before joining the court, Kagan was on the opposite side of the podium as U.S. solicitor general. She said answering questions “was a ton of fun,” but it was also harder than asking them.

A few days after hearing arguments, Kagan said, the justices meet privately to discuss the case. She said they take turns, according to seniority, explaining their view of the case and casting a tentative vote. As the junior justice — she was nominated to the court by President Barack Obama in 2010Kagan goes last.

It’s also the newest member’s duty, Kagan said, to take notes during the conference and answer the door if anyone knocks.

“I myself think it’s some kind of hazing ritual,” she joked.

After a decision is made, a draft opinion is circulated among the justices.

“We agree more than people know and more than we’re given credit for,” Kagan said.

Kagan, the former dean of Harvard’s law school, said that when she writes opinions she strives to “drop the legalese and express things the way a person would in an actual conversation.”


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