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Justice Kagan stays alert with a little bench humor

By Bill Mears, CNN Supreme Court Producer
  • Justice Elena Kagan finds the opportunity to joke from the bench on occasion
  • Thursday she tweaked dense, often dry judicial opinions
  • Observers say Kagan has quickly and seamlessly fit into the court's rhythms

Washington (CNN) -- Justice Elena Kagan must have had her morning cup of coffee. And it showed on the bench Thursday, with a surprising jolt of levity.

First, you should know Supreme Court written opinions are by nature complex, dense, often dry and artless. The justices know that, but rarely acknowledge it. Its newest member did just that, even playfully warning the public to proceed at its own peril.

Kagan, sitting on the far end of the bench, opened the brief court session by summarizing a portion of her 18-page unanimous ruling in a serious case, Smith v. Bayer Corp. The issue was a complicated civil dispute: The majority held a lower federal court's decision denying class-action certification was not binding on a state court considering certification of a similar class action brought by a different plaintiff from the proposed class in the first case. We told you it was a handful.

The ruling has the effect of reinstating various claims against Bayer Corp. over alleged harms from the company's prescription drug Baycol, given to lower cholesterol. Baycol was distributed from 1997 until 2001, when it was voluntarily withdrawn from the market after being linked to 31 deaths in the United States.

"In issuing this order to a state court, the federal court exceeded its authority under the 'relitigation exception' to the Anti-Injunction Act," said the justice from the bench, trying her best to be conversational, but not really succeeding.

But her opening words offered a judicial reality check, which the 51-year-old Kagan apparently could not help ad-libbing:

"This decision involves a very complex procedural issue," she said. "And if you understand anything I say here, you will likely be a lawyer, and you will have had your morning cup of coffee."

Many in the courtroom, including dozens of casually dressed tourists, were not quite sure what to make of a Supreme Court justice serving a generous helping of candor, though some got the joke. Observers noted other justices smiled appreciatively.

Court experts agree Kagan has quickly and seamlessly fit into the unique rhythms and demands of a Supreme Court justice, all the more remarkable since she had never been a judge prior to joining the bench last August.

Her questions at oral argument have been piercing and strategically timed, but she has also found the opportunity to joke on occasion, not afraid even to make fun of herself.

Court sources say she displays a strong work ethic, and a breezy confidence with her colleagues. They say she has been a quick learner. And for an institution with a reputation for austere, self-serious isolation, Kagan, like her benchmates, has quickly understood a little humor can do wonders inside the court -- and for the public at large.