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Justice Kagan's eagerness to speak bumps tradition

By Bill Mears, CNN Supreme Court Producer
updated 3:55 PM EDT, Wed October 5, 2011
Justice Elena Kagan, the newest member of the Supreme Court, committed a mild faux pas in court Wednesday.
Justice Elena Kagan, the newest member of the Supreme Court, committed a mild faux pas in court Wednesday.
STORY HIGHLIGHTS
  • The Supreme Court's spirited nature produces an awkward moment
  • Justice Elena Kagan fails to wait for attorney's traditional opening before jumping in
  • Many more questions are being asked by justices than in years past

Washington (CNN) -- The current Supreme Court is considered a "hot bench." Not because of the room temperature, or the relative good looks of the nine justices. "Hot" as in the spirited, often competitive oral arguments that have livened up -- or injected chaos into -- the public sessions where important legal and constitutional issues are openly debated and discussed.

That eagerness to speak produced an awkward, but ultimately amusing, scene Wednesday involving the court's newest member.

Justice Elena Kagan, beginning her second term as the junior member of the bench, committed a mild faux pas in decorum when trying to question an attorney. The case involved a workplace discrimination claim brought by a former teacher at a Lutheran school.

Lawyers arguing before the court approach the lectern and by tradition, respectfully repeat the line, "Mr. Chief Justice, and may it please the court," and then begin their presentation.

Often the lawyer will barely get those words out before a verbal barrage begins from the bench. But Kagan did not even wait for that, immediately asking experienced attorney Walter Dellinger a question.

Dellinger quickly glanced over at Chief Justice John Roberts, seeking some guidance. Kagan stopped. Awkward pause. She resumed talking. "Mr. Dellinger, could I assume ...," she said, and then stopped again. Another awkward pause as a mild buzz echoed in the ornate courtroom.

Then Roberts, looking grim, gestured with his hand and said, "Justice Kagan," giving her discretion to now pose the question. She seemed puzzled at what was happening, saying, "I feel like I missed something," with both her arms extended.

The argument then continued its whirlwind pace. Those who have never attended these public sessions may be surprised to see they are strictly a question-and-answer scrum, with the justices posing various rapid-fire hypotheticals and analyses at the lawyers, who often are given little chance to answer. A review of Wednesday's official transcript showed the justices interrupting counsel at least four dozen times to pose questions. At least twice, one justice asked a question and a colleague immediately moved in with another question, without the lawyer's ever getting a word in to respond.

The rhetorical free-for-alls in cases big and small have alarmed some court watchers, wondering what purpose the arguments serve other than for the justices to have themselves heard.

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A rough choreography of sorts allows seniority to prevail when two or more justices want to speak. At one point Wednesday, Kagan and Justices Sonia Sotomayor, Stephen Breyer and Anthony Kennedy each offered a question at the same time. Kennedy, who has been a justice since 1987, got the nod.

All defer to Roberts when he wants to speak, and it is his role to step in and control the debate when necessary. He and his predecessor, Chief Justice William Rehnquist, have been known to subtly interject with a question when a colleague tends to go on too long, trying to make his or her point. Roberts has also been known to insist a lawyer finish his answer.

The rule on the bench seems to be: Everyone can talk, just don't interrupt each other, and allow others their chance.

All the justices save Clarence Thomas can be counted on to make some comment. Thomas has not spoken at argument in more than five years.

"I can't really say that's unfair to say I'm silent in that context," he said in a C-SPAN interview in 2007. "I would like to, though, be referred to as the 'listening justice.' I still believe that, if somebody else is talking, somebody should be listening."

In remarks to a legal group later that year he jokingly offered some advice: "My colleagues should shut up!"

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That can be hard when colleagues like Roberts, Sotomayor, Breyer and Justice Antonin Scalia get on a roll. They can dominate an argument with often long-winded hypotheticals, colorful outbursts and persistent probing of a lawyer's argument.

It was not always that way. Arguments in the early days of the republic often lasted days, with lawyers given free rein to drone on at leisure. Listening to rare audio recordings of high court cases argued in the 1950s and '60s, one still finds little interruption from the bench. But things began to change gradually in subsequent decades.

Some court watchers date the change to Scalia's addition to the court 25 years ago this week, as he seems to relish the role of swashbuckling questioner, with equal parts humor and biting analysis.

"He very much changed the dynamic, becoming a very active questioner from the bench," said attorney Paul Clement, a former Scalia law clerk and later U.S. solicitor general. "And some other justices, including justices who had been on the court for a while, were kind of like: If the new guy gets to ask all these questions, I'm going to step up and ask some questions, too. Especially as newer justices came on the court for the first time, it really transformed the way the court conducts business in oral arguments."

Scalia can be especially aggressive. At an argument Tuesday, he spoke 50 times in a 60-minute argument.

The court in the two decades preceding 2008 typically asked about 133 questions per hour-long argument, according to a University of Minnesota study. In the 15 years before that, about 100 questions were asked, on average.

Interrupting counsel, often before they even get a word out, can be entertaining, but also frustrating for those watching an argument. Some flustered attorneys have withered under what can seem like relentless questioning from a particularly animated justice, often Scalia.

Justice Samuel Alito had noted that during his first few months on the job in 2006 it was tough for him to get a comment in.

As for Kagan, barely beyond rookie status on the court, her enthusiasm may have trumped tradition, but it did not stop her from her mission. She asked two more questions in the argument's remaining 10 minutes.

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