May 13th, 2010
04:41 PM ET
5 years ago

Kagan used humor when arguing before the high court

Supreme Court nominee Elena Kagan has argued six cases before the high court since September, and has both zinged and been zinged by her potential future colleagues.
Supreme Court nominee Elena Kagan has argued six cases before the high court since September, and has both zinged and been zinged by her potential future colleagues.

Washington (CNN) – Who says the Supreme Court does not have a sense of humor? The normally sober-minded justices, and those who argue before them, usually have their game faces on, but occasionally some light-hearted moments liven up the proceedings.

Solicitor General Elena Kagan, nominated to the high court this week by President Barack Obama, has argued six cases before the high court since September, and has both zinged and been zinged by her potential future colleagues. She has shown an easy and conversational manner with the court, which might not have been expected since she had never previously argued a case before any court.

Kagan and Justice Antonin Scalia in particular have had their comedic duo moments.

Here are some excerpts of the justices and Kagan engaging in funny - and some not-so-funny– moments. Don't worry about the technical, legalese aspects of what they are discussing, just appreciate their (often strained) efforts at levity.

Note: Where the words "laughter" appear, that indicates the reaction from those attending the arguments, which was duly noted in the court transcripts of the proceedings. Call it the court's official version of a laugh track.

DATE: January 12, 2010
ISSUE: Civil commitment, and the power of the federal government to keep convicted sex offenders behind bars, even after they have served heir lawful sentences. Kagan argued for the government that a federal law allowing so-called "civil commitment" is constitutional, and would not overstep a traditional state function.
SCALIA: I must say I'm not terribly impressed with the argument the states won't do it.
KAGAN: I can tell, Justice Scalia. (Laughter.)

SCALIA: If they [convicted military prisoners in the military] were released from the Army, would that also - if I want to turn this person, after discharge, loose upon the society - could the federal government commit that person?
KAGAN: Mr. Chief Justice - excuse me, Justice Scalia - I didn't mean to promote you quite so quickly. (Laughter.)
CHIEF JUSTICE JOHN ROBERTS: Thanks for thinking it was a promotion.
(Laughter.)
SCALIA: And I'm sure you didn't. (Laughter.)

DATE: March 31, 2010, possibly Kagan's last argument as solicitor general
ISSUE: Whether prosecution for criminal contempt of a court created by Congress may be brought by a private individual in his or her own name.
KAGAN: When a single U.S. attorney's office says that the government will decide to drop a certain set of charges, that U.S. attorney's office, we believe, is speaking for itself, unless there is some indication that it is speaking more widely in such a way that will bind other parts of the government.
ROBERTS: That's absolutely startling. The different U.S. attorneys all work for your boss, right? They work for the attorney general. How can one part of the attorney general agree to something that doesn't bind the other part of the attorney general?
KAGAN: The United States government is a complicated place and the fact that –
ROBERTS: I take your word for it. (Laughter.)

KAGAN: I think only the D.C. [District of Columbia local] court could have prevented the respondent from going forward. I think that the U.S. –
SCALIA: And I have to agree with you that to accept this argument that the prosecutor here is an agent just of the court, just of the D.C. court, not an agent of the executive ?
KAGAN: Who would you like the person be an agent of, Justice Scalia?
(Laughter.)
SCALIA: Well, I'm not making the argument.
ROBERTS: Usually we have questions the other way.
KAGAN: I apologize.

DATE: December 7, 2009
ISSUE: Corporate fraud, and the constitutionality of the Sarbanes-Oxley financial oversight law that grew out of accounting scandals at Enron Corp. and other companies.
JUSTICE SAMUEL ALITO: Well, let me give you an example. Suppose the president objects to very large salaries that the members of the [oversight] board receive. What are their salaries?
KAGAN: Excuse me. They are over $500,000.
ALITO: And did they decide that themselves?
KAGAN: Subject to the review of the [Securities and Exchange] Commission [which has oversight of the financial oversight board]. And the commission has been active in this area.
ALITO: Suppose the president reads about this and he says: This is outrageous; I want to change it. How can he do that? Remove –
KAGAN: Well, I think he does –
ALITO: - remove the SEC commissioners unless they take action against the board?
KAGAN: I think he does everything that he would do with respect to any other SEC function, is that he or some member of his staff would call the chair or would call other commissioners and say: I have a problem with this.
SCALIA: [offering a hypothetical order by the president] "Would you please change it," right?
KAGAN: Would you p-l-e-a-s-e [stretching out the word] change it.
(Laughter.)
SCALIA: I could do that. (Laughter.)

DATE: February 23, 2010
ISSUE: Civil liberties dispute over the government's power to criminalize "material support" of a terrorist organization. Does a key provision of the 2001 Patriot Act threaten free speech rights of those who would provide financial and other aid to lawful, non-violent activities of designated groups?
*Kagan stands up to speak, following the arguments of a much taller attorney. She has to crank a lever to lower the lectern, so the 5-foot-3 solicitor general can be seen and heard.
ROBERTS: General Kagan ...
KAGAN: (as she is cranking) With your permission, Mr. Chief Justice. This may take some time. (Laughter.)

JUSTICE SONIA SOTOMAYOR: Under the definition of this statute, teaching these members [accused terrorists] to play the harmonica would be unlawful. You are teaching - training them in a specialized activity. There has to be something more than merely a congressional finding that any training [of a terrorist group] is bad.
KAGAN: Well, I think here we have the congressional definition of what kind of training is bad, and that definition focuses on training in specialized activities. Now, you say, well, maybe training, playing a harmonica is a specialized activity. I think the first thing I would say is there are not a whole lot of people going around trying to teach al Qaeda how to play harmonicas.
SCALIA: Well, Mohammed Atta [one of the 9/11 hijackers] and his Harmonica Quartet might tour the country and make a lot of money. Right?
KAGAN: I'm sorry. I ... (Laughter.) [Kagan doesn't laugh and looks puzzled that a joke has been told at her expense]

DATE: September 9, 2009
ISSUE: Whether congressional limits on federal campaign spending by corporations - business, unions, and advocacy groups - go too far in restricting political speech, a right individuals enjoy to influence elections.
JUSTICE JOHN PAUL STEVENS: Before you go to your second point, may I ask you to clarify one part of the first, namely, your answer to the question I proposed to Mr. [Theodore] Olson [arguing against Kagan], namely, why isn't the Snowe-Jeffords Amendment, which was picked on by Congress itself, and which is argued by the NRA [National Rifle Association], an appropriate answer to this case?
KAGAN: That was my third point, Justice Stevens.
STEVENS: Oh, I'm sorry. (Laughter.)
KAGAN: So we will just skip over the second.

ROBERTS: Isn't it extraordinarily paternalistic for the government to take the position that shareholders are too stupid to keep track of what their corporations are doing and can't sell their shares or object in the corporate context if they don't like it?
KAGAN: I don't think so, Mr. Chief Justice. I mean, I, for one, can't keep track of what my - where I hold my investments –
ROBERTS: You have a busy job. You can't expect everybody to do that.
(Laughter.)


Filed under: Elena Kagan • Popular Posts • Supreme Court
soundoff (23 Responses)
  1. Mark

    Seems it's not Solicitor-General Kagan being funny as much as it is her getting tripped up by her future colleagues while trying (not always successfully) to argue a case on behalf of the Justice Department.

    May 13, 2010 05:02 pm at 5:02 pm |
  2. ib

    That's because she is a joke. This woman has no business being appointed to the high court. She has never even served as a judge. What a stupid stunt by Obama.

    May 13, 2010 05:04 pm at 5:04 pm |
  3. LacrosseMom (the real one)

    Humor is a great disarming tactic! The Conservatives need a lot of it! We need to lighten up America!

    Supporting you, Elena!!

    May 13, 2010 05:07 pm at 5:07 pm |
  4. Henry Miller, Libertarian

    "Kagan argued for the government that a federal law allowing so-called "civil commitment" is constitutional,"

    "ROBERTS: Isn't it extraordinarily paternalistic for the government to take the position that shareholders are too stupid to keep track of what their corporations are doing and can't sell their shares or object in the corporate context if they don't like it?

    KAGAN: I don't think so, Mr. Chief Justice."

    These positions by Kagan suggest to me that she's very much a statist who thinks the government can do no wrong. That's kinda scary, especially the government seldom does anything right.

    May 13, 2010 05:08 pm at 5:08 pm |
  5. Joe

    I can visualize my humor seen her/him in the acclaim broadway show "La Cage aux Folles" coming down on the stairways wearing a tight fit red dress, singing with the chorus "We Are What We Are".

    May 13, 2010 05:15 pm at 5:15 pm |
  6. Ken

    I am not laughing.

    May 13, 2010 05:16 pm at 5:16 pm |
  7. Maria H-Miami

    6 Cases argued????? that's it????? And this is the person being considered to be a Judge of the Supreme Court????

    She's not a Judge and how come she didn't try to become a Judge in the lower courts like Federal Court; Civil Court, Criminal Court ??? is it because they were not as lucrative as the Supreme Court????

    So the Supreme Court she does want?? unlike Judge Sotomayor who loves the Law so much that is willing to work in any court.

    I think Kagan is a SNOB, she probably wouldn't even work in Family Court.

    Nothing like a Nixon repeat in 2010.

    May 13, 2010 05:17 pm at 5:17 pm |
  8. malcolm in St Louis

    "She has never even served as a judge." hey ib about a third of the supreme justices were never Judges.

    the repubs had no problem with Harriet Myers until they saw the only reason she seemed smart was because she was standing next to Bush.

    She had no judicial background just many years of being private counsel to Bush as baseball team owner, governor then Prez.

    May 13, 2010 05:33 pm at 5:33 pm |
  9. Carmen

    Henry Miller, she's the Solicitor General. If she wasn't arguing that her client was right, she'd be a pretty poor attorney.

    And, Mark, actually as an attorney myself, it's plain to see that General Kagan has a very easy and straightforward manner with the Court and the justices, that she separates their politics from their persons. The justices recognize that, and they respond in kind. For lawyers, these are very funny exchanges. You don't see this in oral arguments very often at all. It's very professional, but very refreshing.

    To every protesting that she has never been a judge, think back to mere days before her nomination was announced. How many people - conservatives, libertarians, and others from across the political spectrum - were asking that Obama appoint a non-jurist to the Court? How soon we forget. Being a judge isn't like being a mechanic or a surgeon. It's mostly about temperment, not on-the-job experience. I think she has the temperment to be an excellent justice, and I hope her confirmation goes smoothly.

    May 13, 2010 05:34 pm at 5:34 pm |
  10. Megan

    I wish some of you people would do a little more research before you rush to judgment on someone's experience. Typical of Republicans though...say no before they even think about anything.

    Party politics before the people...that is the Republican way!

    May 13, 2010 05:46 pm at 5:46 pm |
  11. Joe

    Great post Carmen. What the public needs to realize is that prior experience as a judge is neither required nor necessary to become a Supreme Court Justice. William Renquist was appointed to the Supreme Court without serving as a judge prior to nomination and was later promoted to Chief Justice by none other than Ronald Regan. Given Kagen's impressive education (Princeton, Oxford, and Harvard Law), I don't think there's any doubt that she is intelligent enough for the job. For goodness sakes, she clerked for Thurgood Marshall and considers him to be her greatest mentor. This is how the political system works in our country. The President is allowed to nominate Justices, and (big surprise) they tend to reflect the same political views of the President's administration. It was the same with President Bush's nominations of conservative Justices Roberts and Alito. This is yet another case of Republicans trying to make a big deal out of nothing and try to get their base fired up. To all the people raving about how unqualified Kagan is, chances are you would be reacting like this to anyone the President nominated because the fact is you just don't like him. Grow up, do some research, and stop parroting everything you hear on Fox News.

    May 13, 2010 06:17 pm at 6:17 pm |
  12. ThinkAgain

    To everyone so concerned about Elena Kagan not having served as a judge before (ib, Maria H-Miami, et al):

    Approximately 38% of all Supreme Court Justices did not have prior judicial experience before joing the High Court.

    The last one was William Rehnquist – nominated by Richard Nixon and elevated to Chief Justice by Ronald Reagan.

    May 13, 2010 06:27 pm at 6:27 pm |
  13. ThinkAgain

    Maria H-Miami: Former President Clinton nominated Elena Kagan to the U.S. Court of Appeals for the District of Columbia Circuit, to replace James L. Buckley.

    The Republicans blocked hearing her nomination, so she never served as a judge.

    So I guess you could say she "tried" to become a judge, but the good ol' GOP once again blocked progress and put party ahead of the good of our country.

    May 13, 2010 06:30 pm at 6:30 pm |
  14. Claudia, Houston, Tx

    Judges are lawyers and lawyers are judges. GOT IT.

    May 13, 2010 07:09 pm at 7:09 pm |
  15. Dennis

    Isn't anyone other than NYC natives qualified for SCOTUS? Let's have some diversity!

    May 13, 2010 07:17 pm at 7:17 pm |
  16. Stymie

    You need humor to survive this administration.

    May 13, 2010 07:17 pm at 7:17 pm |
  17. LacrosseMom (the real one)

    Ignorance is dangerous, it also causes division and undo tension in our Nation! I too, wish that the conservatives posting would do some research on the subject at hand before posting! Ignorance is rampant in the GOP, which is a tragedy for America.

    May 13, 2010 07:18 pm at 7:18 pm |
  18. valwayne

    She seems like a nice lady with a sense of humor. She has no experience as a judge so maybe with 59 Democratic Senators that will be enough! Obama and Ms Kagan can hope that all 41 Republican Senators don't use "The Obama Standard". Remember Obama admited that Chief Justice Roberts was well qualified but voted to filibuster his nomination and then voted against him because he didn't think Justice Roberts would vote the way he thought he should. Fortunately for Obama and Ms Kagan all 41 Republican Senators are unlikely to be as partisan and political as Sen Obama was!! Ironic isn't it!!!

    May 13, 2010 07:26 pm at 7:26 pm |
  19. normajean

    Some of our most illustrious Supreme Court Justices have not been judges previously. You who continue to make that mistake should stop playing with your computer and do some reading. This is getting ridiculous. If you are just talking off the top of your head and nothing is factual, why don't you just look for a ten year olds game to play. I can't believe that so many of you are so nasty. As to looks, if you look in a mirror, you might not judge {no pun intended} others with such a vulgar attitude..Some of you people { not all} are so arrogant, I don't see how you stand yourselves.

    May 13, 2010 07:29 pm at 7:29 pm |
  20. Get A Grip

    Why would anyone be surprised that Obama nominated Kagen. He's unqualified to be President of the United States so of course he knows how to nominate someone unqualified to the Supreme Court.

    May 13, 2010 07:47 pm at 7:47 pm |
  21. GOP = the great white dinosaur

    GOPers, do you have any memory whatsoever? William Rehnquist, remember him? Might have have been the chief justice for many years. Sounding familiar? List how long he was a judge prior to being nominated? Still waiting... oh he wasn't. But that's okay because he was a republican right?

    May 13, 2010 07:48 pm at 7:48 pm |
  22. phoenix86

    Humor is the leading characteristic of the Obama administration. It has been a joke from the beginning. Why should his nominees be any different.

    May 13, 2010 07:57 pm at 7:57 pm |
  23. Pragmatic

    Guess who had just two years of experience when nominated by then-President George W. Bush to the high court, first as an associate justice and then as chief justice? John Roberts... ya know the man that couldn't even get the 37 words used to swear in a new President – had a "do-over".

    ...The reason she has never been a judge is that when President Clinton named her 11 years ago to the U.S. Court of Appeals for the District of Columbia, the GOP-controlled Senate blocked her nomination from coming to a vote so the appointment could be made instead by an incoming Republican president. . Always the party of "no".

    May 13, 2010 08:08 pm at 8:08 pm |