I had such a great time again at the 9th Circuit Judicial Conference last week in Spokane. Plus I got to wander around my old alma mater Gonzaga University.
Justice Kagan attended the final get-together of the conference on the grounds of Gonzaga Law School. I got to take the picture and shake her hand! She is such a regular person with endless patience meeting and having her picture taken with everyone. The last program of the conference the next day was an interview with her. She made three particular comments that I thought were pretty interesting:
1. During the almost two years when there were only eight of them, they really worked harder on the 4-4 votes. They really didn’t want to rule 4-4. I think most of us know that. But she said that typically with nine justices, they vote at the conference and at the end of the vote, someone wins. The natural tendency is to move on. But when the vote was 4-4, they would continue talking about it, sometimes for a long time, what can we do, how can we find a way to rule rather than just say we’re stuck? She chuckled and said often the way out was to limit the scope of the ruling which may have been to a point that the ruling wasn’t terribly useful but at least it was a ruling.
2. Justice Kagan was a law clerk for Justice Thurgood Marshall. She loves the man. He told the clerks countless stories. She said she thinks he is the greatest litigator of the 20th century. He argued probably 15 times before the Supreme Court. But she added that there were times when he would argue before the Supremes and two days later do a trial in Mississippi. He had a lot of experience in every venue and love to tell about it.
3. Justice Kagan was asked whether she agreed with the perception that there is a growing “supreme court bar,” i.e., a fairly small group of lawyers focusing on the Supreme Court. If so, is that good? She said that the concept is generally right and that it is good for the court. That is because those lawyers know what to expect, what the court wants, how to talk to the court, get intimidated a little less, and the court therefore trusts them a little more going into oral argument. She commented that sometimes there are attorneys arguing before them that they wish had gone to one of the specialists.