After asking several questions in a futile effort to calculate a foreign tax rate during oral arguments Wednesday in PPL Corp. v. Commissioner of Internal Revenue, an exasperated Justice Stephen G. Breyer gave up.
“All right. I have said enough,” Breyer said. “My law clerks would have picked this up. They would have written it down and I will be able to go back with the transcript to study it, which I will do.”
That comment earned Breyer one of his five laughs from this holiday-shortened oral argument week, making him this week’s Funniest Justice – and giving him a real shot at overtaking Justice Antonin G. Scalia in our term-long tally.
But it was Justice Elena Kagan who was the breakout comedian this week, earning a career-high four laughs. During oral arguments in the patent case Bowman v. Monsanto Co., she drew chuckles by speculating whether a 10-year-old could inadvertently infringe a soybean seed patent by growing plants from edamame.
When attorney Seth Waxman informed Kagan that edamame cannot produce soybean plants, Kagan responded: “And I thought I was being so clever, too.” More laughs.
Here are the latest standings:
Justice Antonin G. Scalia: 27
Justice Stephen G. Breyer: 24
Chief Justice John G. Roberts Jr.: 8
Justice Anthony M. Kennedy: 6
Justice Elena Kagan: 5
Justice Sonia M. Sotomayor: 4
Justice Clarence Thomas: 1
Justice Samuel A. Alito, Jr.: 1
Justice Ruth Bader Ginsburg: 0
The two justices of the U.S. Supreme Court spent Saturday hunting together in Wyoming according to Kagan, who talked about their plans while speaking Friday at an event at the University of Tennessee, according to the Knoxville News Sentinel.
Kagan, who has been target shooting with Scalia several times, told the crowd that last spring Scalia proclaimed: “It’s time to move on to the big game.”
“I’m hoping to bag myself an antelope,” she said Friday.
Justice Elena Kagan is the latest Supreme Court jurist to dismiss the notion that high-profile, split decisions like the health care law ruling result in lingering acrimony among members of the Court.
“Sometimes you read these opinions and you think ‘they must hate each other.’ It’s just not true,” Kagan said during an appearance at the University of Michigan, the Detroit News reports. “We have enormous respect for each other and a feeling that we are all operating in good faith.”
Besides, she added: “If you take this stuff personally, this is going to be a long life tenure.”
Though she has the least seniority on the Court, and as such is assigned duties such as taking notes and answering the door if someone knocks during the justices’ conferences, she already has a very proud achievement: having a frozen yogurt machine installed in the Court’s cafeteria.
The students in the crowd cheered the move. “That’s what the Supreme Court staff thinks, too,” Kagan responded. “So when it comes to the end of my term, if I’ve accomplished anything, at least there’s that.”
As some lawmakers continue to push to allow cameras to broadcast Supreme Court arguments, the Court’s newest justice has chimed in on the issue.
Justice Elena Kagan, speaking before the National Association of Women Judges’ Midyear Meeting and Leadership Conference at Harvard Law School, said that allowing cameras in the Supreme Court could be a risky proposition.
“I don’t think there’s any doubt in the world that putting cameras in Congress has changed the behavior of Congress,” Kagan said, according to our sister blog, Massachusetts Lawyers Weekly’s The Docket. “People start thinking about their audience in a very different way. … It would be quite a bad thing if the introduction of cameras made it a less serious enterprise.”
But current law students can take heart! Even if you don’t ace every course, you too can end up on the U.S. Supreme Court.
According to Harvard Law School’s The Record, back when Elena Kagan was a law school student she earned [dramatic drum roll here….] B’s in several classes!
The Record piece goes on to list several other noted legal scholars and judges who earned a less-than-stellar grade or two during their time in law school.
In an amicus filing supporting neither party in the case, the group Freedom Watch claimed that Kagan’s work in the Obama Administration shows that she “has demonstrated an extra-judicial bias and prejudice and must respectfully recuse herself or be disqualified,” according to SCOTUSblog.
Kagan did not participate in consideration of the oral argument motion – a routine approach for justices when a matter involves them directly. But considering that Kagan has participated in other orders related to the health care challenge, it is expected that she will hear the case.
For all the latest news from the Supreme Court, always check out the Supreme Court Report on Lawyers USA online. (The link is always on DC Dicta’s right hand column.)
Emails recently obtained by conservative government watchdog Judicial Watch reveal that in 2010, then-U.S. Solicitor General Elena Kagan was in a celebratory mood when she learned there was enough Senate support to pass the Obama administration’s health care overhaul.
“I hear they have the votes Larry!!” Kagan wrote in a March 21, 2010 email exchange with Laurence Tribe, who was then a White House senior advisor. “Simply amazing…”
Some Republican lawmakers have called for an investigation to determine if Kagan had any role in the implementation or defense of the health care law when she was solicitor general.
Neither Kagan nor Clarence Thomas – who is also the object of calls by some to recuse from the case based on his wife’s connections to groups urging that the law be struck down – indicated that they would recuse themselves from the case when the Court granted certiorari Monday.
“These new emails are bound to raise additional questions about whether Justice Kagan ought to participate in High Court deliberations on Obamacare,” said Judicial Watch President Tom Fitton in a statement. “Certainly, if these documents were known at the time of her confirmation, there may have been quite a different Senate debate.”
When the U.S. Supreme Court granted certiorari to decide the constitutionality of the federal health care law’s individual mandate, as well as several other jurisdictional and substantive issues, there was a notable omission: no mention was made about recusal of any justice from the decision.
Despite calls from advocates on both sides of the political spectrum for Justices Clarence Thomas and Elena Kagan to remove themselves from any consideration of the health care case, all indications suggest both will be present during the 5 ½ hours of oral arguments slated for the spring. Normally a justice who recuses from a particular case will indicate it in the cert order. But no such indication was made yesterday by Thomas or Kagan.
Critics of Thomas cite the work of the justice’s wife, Virginia “Ginni” Thomas, founded a Tea Party-affiliated group that has called the health care law unconstitutional and worked for the Heritage Foundation, which also opposes the health care law.
Meanwhile some Republican lawmakers have called for an investigation into the role Kagan played in preparing the legal defense to challenges to the health care law during her tenure as solicitor general.
Justices decide for themselves whether to sit out any given cases due to some potential conflict.
“Presumably, they made whatever judgments they were going to make,” said Greg Katsas, a Jones Day partner representing one of the petitioners in the case, told The Hill.
Nowadays it seems that most people communicate with colleagues by firing off missives using Blackberrys, iPhones or other handheld devices. And if they really want to take the old school route, they will write an email on an actual computer.
But not at the U.S. Supreme Court.
According to Justice Elena Kagan, the justices prefer their exchanges to be conducted through hand-delivered memos, the Associated Press reports. The newest justice, speaking at a National Conference of Bankruptcy Judges event in Tampa, said the justices “ignore 25 years of technology” with their preferred communication method.
“The justices do not e-mail each other,” Kagan said. “The clerks e-mail each other, but the justices do not.”
But the justices do something many other coworkers don’t, Kagan said: speak to each other in person often.
“We actually all like each other very much,” Kagan said. “We eat lunch together and there are some very strong friendships among us…. I’m having a great time. I have no complaints about this job.”
HT: ABA Journal