SUPREME COURT WATCH ROOKIE JUSTICE


Kristin Linsley Myles, Michelle Friedland, Aimee Feinberg, Miriam Seifter, and Michael Mongan


From left: Kristin Linsley Myles, Michelle Friedland, Aimee Feinberg, Miriam Seifter, and Michael Mongan


T 48 FALL 2011


The Supreme Court made much front page news this term, with its decisions on campaign fi nance laws, the death penalty, and prison overcrowding, among others. But the Court’s 2010 Term was notable for not just what it decided but who did the deciding. This term marked Justice Elena Kagan’s fi rst on the Court and the fi rst time in history that the Supreme Court had three female members on the bench. Justice Kagan’s nomination to the Court was met with great curiosity about how this Harvard-dean-turned-solicitor-general- turned-Supreme-Court-justice would approach her role as one of the nation’s nine most powerful jurists. In this column, we look at Justice Kagan’s fi rst year on the Court.


Unlike all of her colleagues, who were elevated to the Supreme Court from a federal appellate judgeship, Jus- tice Kagan’s previous job was as an advocate appearing before the Court, as the United States solicitor general. Although Justice Kagan is the 111th member of the Su- preme Court, she is only the third person to be elevated to the highest Court directly from the position of solici- tor general. Her brief tenure as the leading advocate for the executive branch gave her far greater familiarity with


the Court than most freshman justices (whose prior ex- periences with the Court often involved waiting on the sidelines to see if their appellate court decisions would be upheld or reversed). Justice Kagan had argued be- fore the Court six times during the October 2009 Term, on issues ranging from a First Amendment challenge to federal campaign fi nance laws to the constitutional- ity of an oversight board created by the Sarbanes-Oxley Act. As a result of those appearances, Justice Kagan had developed a working relationship of sorts with her new colleagues and an understanding of their approaches on the bench, even before her investiture.


Joining the Court directly from the offi ce of the solici- tor general also meant that Justice Kagan was familiar with many of the cases pending before the Court this term that had come through her offi ce. The solicitor general not only handles Supreme Court cases where the United States is a petitioner or respondent, but also decides whether to authorize appeals by the government to the federal courts of appeals and submits briefs on behalf of the United States as amicus curiae or at the in- vitation of the Court. The Court’s recusal practices are both voluntary and opaque, but it is clear that a justice’s


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52  |  Page 53  |  Page 54  |  Page 55  |  Page 56  |  Page 57  |  Page 58  |  Page 59  |  Page 60  |  Page 61  |  Page 62  |  Page 63  |  Page 64  |  Page 65  |  Page 66  |  Page 67  |  Page 68