SUPREME COURT WATCH
prior involvement as an advocate in a case that is cur- rently pending before the Court warrants his or her ab- staining from any participation in the Court’s decision. A former solicitor general like Justice Kagan, then, can expect to be sitting on the sidelines for a large number of merits cases during her rookie year.
By the end of the 2010 Term, Justice Kagan had recused herself from twenty-six merits cases, about 32 percent of the total number decided by the Court. This is roughly consistent with the track record of Justice Thurgood Marshall, who was elevated to the Court after serving as solicitor general in the Johnson administration. Justice Marshall recused himself from fifty-seven of the Court’s merits cases during his initial term, about two-fifths of the total, the vast majority because of his prior service in the Department of Justice. The only other former solici- tor general to move up to the Court, the more forgettable Stanley Forman Reed, recused himself from twenty-nine merits cases during his first term on the Court in 1938.
When Justice Kagan exchanged her advocate’s attire for a black robe, she stepped into a world of rituals and traditions that often find the most recently confirmed justice at the bottom of the pecking order. For example, the junior justice takes notes during the Court’s con- ferences and is tasked with the inglorious responsibil- ity of answering the door during conferences if one of the marshal’s aides knocks. (Justice Stephen Breyer fre- quently recounts a story of opening the door only to find that he was being asked to deliver a cup of coffee to Justice Antonin Scalia.) She is also the last to walk into the House chamber for the president’s state of the union address and the last to walk in funeral processions. The junior justice also holds the high honor of serv- ing on the committee with jurisdiction over the Court’s cafeteria. Serving on this committee, Justice Kagan has already made her mark: thanks to her efforts, the cafeteria now offers frozen yogurt in addition to the usual chicken finger fare.
Nowhere are the consequences of juniority more appar- ent than in the Court’s consideration and assignment of cases. After each week of oral argument, the justices hold a private conference to discuss the cases they have heard and to cast a preliminary vote on how those cases should be resolved. The discussion begins with the chief
justice, followed by the most senior associate justice (Antonin Scalia), and so on. The junior justice is the last to speak. In most of the Court’s cases, which are decided by 9–0 or 8–1 votes, the matter will already be decided by the time the junior justice has a chance to express her views. In a small but important fraction of cases, how- ever, the vote stands at 4–4 after the first eight justices have chimed in, and the vote of the most junior justice is decisive. Justice Kagan found herself in this position a handful of times this term.
At the close of each monthly sitting, justices receive their opinion assignments. Majority opinions are assigned by the chief justice, unless he happens to be dissenting, in which case the opinion is assigned by the most senior justice in the majority. Court tradition provides that the chief justice assigns a yawn-inducing case to be the first opinion of his most junior colleague. Justice Breyer’s in- augural effort, Allied-Bruce Terminix Cos., Inc. v. Dobson, 513 U.S. 265 (1994), involved the reach of section 2 of the Federal Arbitration Act, which makes enforceable a written arbitration provision in a contract evidencing a transaction involving commerce. Justice Ruth Bader Ginsburg’s first opinion was a barn burner on whether the fiduciary standards set out in the Employee Retire- ment Income Security Act govern an insurance compa- ny’s conduct in relation to annuity contracts. See John Hancock Mutual Life Insurance Co. v. Harris Trust and Savings Bank, 510 U.S. 86 (1993). Justice Sonia Soto- mayor may have lucked out with her first assignment, deciding in Mohawk Industries, Inc. v. Carpenter, 130 S. Ct. 599 (2009), that orders to disclose communications covered by the attorney-client privilege may not be im- mediately appealed under the collateral order doctrine.
The first majority opinions authored by Justice Kagan were no exception to the tradition. In Ransom v. FIA Card Services, the Court through Justice Kagan held that a debtor who does not make a loan or lease payment on his vehicle may not take the car-ownership deduc- tion set out in Chapter 13 of the Bankruptcy Code, 11 U.S.C. § 707(b)(2)(A)(ii)(I). Justice Kagan concluded that the statutory text precluded the deduction, because debtors were only allowed to claim “applicable monthly expenses,” which she and seven of her colleagues read as referring to expenses actually incurred by the debtor. Justice Scalia dissented, arguing that the statute entitled
THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 49
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