'Dynamic' duo of Kagan, Sotomayor add vigor to court

WASHINGTON  After each Supreme Court appointment in recent years, the arguments before the justices have gotten more energetic and forceful. Now, the two newest justices, Sonia Sotomayor and Elena Kagan, are changing that dynamic even further — and offering a glimpse of how they could reshape the court's liberal wing.

Sotomayor is far more talkative than was David Souter, the justice she succeeded. Yet she also is asking more pointed questions that reveal her thoughts on the law and her fact-based approach. "Slow down from the rhetoric and give me concrete details," she urged one lawyer.

Kagan jumps in more regularly, too, than the man who preceded her, John Paul Stevens. She immediately has developed a pattern of piercing questions. Stevens would sometimes gently suggest a point of view, but Kagan more directly lets her colleagues know her line of reasoning and often lays out the liberal viewpoint.

The new justices have brought a stronger voice on the left than the four liberals had before Sotomayor joined in 2009 and Kagan in 2010. Kagan particularly is putting forward broader legal arguments that could guide her colleagues' thinking, often in contrast to those set up by the court's five conservatives.

That ultimately could mean that the vacuum created by the departure of senior liberal justice Stevens — who worked behind the scenes to build coalitions and moderate the court's conservative trend — could be filled in a new fashion.

It is not yet clear whether the forcefulness of Kagan and Sotomayor during oral arguments eventually will produce more liberal decisions, but their activities are at least bringing more attention to their perspectives early on, before the justices meet to discuss and vote on a case.

"The two newest justices have really changed the dynamic," says Kansas University social psychology professor Lawrence Wrightsman, who has written about Supreme Court oral arguments. "Kagan and Sotomayor seem to have a more detailed and thought-through strategic position in what they say" to lawyers who come before the high court.

"The biggest difference is they are much more direct" than their predecessors, says University of Minnesota political science professor Timothy Johnson, who has compiled a database of arguments dating to the 1990s. "I think they are pinpointing the issues more."

All told, Supreme Court arguments — which resumed last week after a four-week recess — have become livelier affairs and may offer a glimpse into how the justices operate in the private confines of their conference room.

Kagan, who was the U.S. solicitor general before she donned the black robe, has revealed herself as a deft player who can work her way easily into question-and-answer sessions and cut to the heart of an issue. And in an era of sound bites and limited attention spans, she — more than others on the left — can serve up pithy, memorable quotes.

At one argument in January, she told a lawyer his position appeared to be: "Tails you win, heads you win."

A more vibrant bench

During earlier eras, oral arguments could be dry affairs.

A lawyer would stand at the lectern and talk for long periods before getting a single question. Over time, as more lawyers who had regularly argued before the court or had been law professors joined the bench, the tone livened up. In recent years, it has become what some lawyers and justices, including Kagan, call "a hot bench."

Members of today's court, including Antonin Scalia on the right and Stephen Breyer on the left, have acknowledged they often try to convey their own arguments to fellow justices as they question lawyers at the lectern. Conservative Chief Justice John Roberts, a former appellate lawyer who had argued 39 cases at the high court before becoming an appeals court judge in 2003 and a Supreme Court justice in 2005, is especially adept at telegraphing his reasoning.

David Frederick, a Washington lawyer who argues often before the justices and has written a book on Supreme Court arguments, observes that the increased activity "feeds on itself."

"As a justice from one perspective makes inroads on an advocate's position," he wrote in his book, Supreme Court and Appellate Advocacy, "the tendency increasingly has been for a different justice to come to that advocate's 'rescue' with a friendly question or to attack an advocate's case from another perspective."

Sotomayor and Kagan have caused a spike in that one-upmanship — although with distinctly different emphases and personal styles.

Sotomayor, President Obama's first appointee to the court, has a hard-charging style and exudes an urgency for answers — particularly on the facts of a case, not the wide legal framework that Kagan typically tests.

Sotomayor asks more questions than any new justice in recent years and more than many veterans. University of Minnesota professor Johnson says justices over the past decade have asked an average of about 14 questions per oral-argument session, and that during her first term last year Sotomayor asked an average of 16 questions. Johnson has been compiling and analyzing data on oral arguments back to 1998.

She is persistent, demanding — "But wait a minute," she said as she interrupted one lawyer in January — and often breaks in on colleagues' questions, turning Chief Justice Roberts into a traffic cop of sorts.

In one case, liberal Justice Ruth Bader Ginsburg was in the middle of asking a question when Sotomayor interrupted with her own query. That prompted Roberts to tell the lawyer at the lectern, "I'm sorry. Could you answer Justice Ginsburg's question first?"

In another dispute, as Justice Anthony Kennedy, a centrist-conservative was midquestion, Sotomayor interrupted and Roberts intervened to tell Kennedy to continue. After Kennedy had gotten an answer from the lawyer, Roberts turned to her and said, "Now, Justice Sotomayor."

Her questions go deep into the details of a case, and the former prosecutor sometimes sounds as if she is cross-examining a witness: "Are you talking about current figures or past? Tell us the date of the figures,"she said to one lawyer, in an exchange regarding statistics of prisoner suicides.

She told another who was asserting that government officials had failed to turn over crucial information for development of a stealth aircraft, "Well, there's a factual dispute about that. … (T)here is a claim they told you your weight estimates weren't right."

Sotomayor and Scalia, a 1986 Reagan appointee who was long the most aggressive questioner, have become rivals in their tough approaches. Yet Scalia remains the champion of the cutting remark, as an exchange in late November showed.

The case centered on crowding in California prisons and the impact on inmates' mental health care. Sotomayor asked the attorney for the state how officials were addressing the situation. She wanted details, insisting, "Slow down from the rhetoric."

As the Q and A escalated, Sotomayor asked, "When are you going to avoid the needless deaths that were reported in this record? When are you going to avoid or get around people sitting in their feces for days in a dazed state? When are you going to get to a point where you're going to deliver care that is going to be adequate?"

Breaking in on the colloquy, Scalia, who did not appear as concerned about prisoner conditions, played off her earlier command to "slow down from the rhetoric" and quipped to the attorney, "But don't be rhetorical!"

Sotomayor's concern for prisoners' rights extends to her written opinions. Last fall, for example, she forcefully dissented when the majority refused to hear the appeal of a Louisiana inmate who said he had been punished, including with hard labor in 100-degree heat, for not taking his HIV medication.

"To be sure, (the prisoner's) decision to refuse medication may have been foolish and likely caused a significant part of his pain. But that decision does not give prison officials license to exacerbate (his) condition further as a means of punishing or coercing him," she wrote. No other justice joined her.

Kagan's aggressiveness

Kagan, appointed by Obama last summer, moves deliberately and keeps a closer eye on the other justices and their patterns in questions.

She typically waits some time before entering the give-and-take. When she does, her questions reveal a more sweeping context, one often at odds with the prevailing view of the ideological right.

In a January case from Kentucky testing when police may barge into a home without a warrant and seize drugs or other evidence, several justices expressed sympathy for police. Kagan said sharply, "One of the points of the Fourth Amendment is to ensure that when people search your home they have a warrant, and, of course, there are exceptions to that. But if there is one place where the warrant requirement has real force, it is in the home."

In November, she homed in on the crux of a dispute over Arizona tax credits for donations that help students attend religious schools. She challenged a government lawyer who supported the tax credits and sought to make it harder for taxpayers to sue when programs funnel taxpayer dollars toward religious education. His line of reasoning ran counter to a pattern of Supreme Court decisions that allowed challenges to such programs that might violate the required separation of church and state.

"If you are right," Kagan told the lawyer, "the (Supreme) Court was without authority to decide" several similar cases going back decades by taxpayers with church-state claim.

Kagan's line of questioning drew the immediate attention of swing-vote Justice Kennedy. "I just want to make sure I heard your answer," Kennedy told the attorney. "You agree with Justice Kagan's criticism. … You said, yes, she's right. Those cases were wrongly decided."

Kennedy seemed struck by the government's concession that its stance would significantly break from the past. The court has not issued its decision in the case.

How Kennedy or any of the veterans will react over time to the newest members of the bench is not easy to predict. Their reaction could determine future trends in the law.

Kagan, in the only on-the-record interview she has done since being sworn in, suggested to C-SPAN in December that she views oral arguments as a forum for justice-to-justice persuasion.

"We don't talk about the cases together beforehand," she noted. "Oral arguments provide the first chance for you to see what your colleagues think about a case … and for you to suggest to them what you think. … I listen hard to what happens in an argument."