For most of the last two decades, Supreme Court conservatives led by Justice Antonin Scalia dominated the debates during oral arguments. They greeted advocates for liberal causes with sharp and sometimes caustic questions, putting them on the defensive from the opening minute.
But the tenor of the debate has changed in recent months, now that President Obama’s two appointees to the court, Sonia Sotomayor and Elena Kagan, have joined the fray and reenergized the liberal wing.
Gone are the mismatches where the Scalia wing overshadowed reserved and soft-spoken liberals like now-retired Justices David H. Souter and John Paul Stevens. Instead, the liberals often take the lead and press attorneys defending the states or corporations.
“They’re clearly on a roll,” said Washington attorney Lisa S. Blatt, who has argued regularly before the high court. “They are engaged and really active. It just feels like a different place.”
That dynamic was on display this fall, when a court that leans conservative on cases of crime and punishment heard California’s appeal in a case where a panel of three federal judges had ordered the release of about 40,000 prisoners. The state’s lawyer stepped to the lectern with reason to expect a friendly reception.
The order is “extraordinary and unprecedented,” Carter G. Phillips began, and “extraordinarily premature” because the state was not given enough time to solve its prison problems.
But Sotomayor soon cut him off.
“Slow down from the rhetoric,” she said, launching into a withering discussion of the state’s 20-year history of severe prison overcrowding and “the needless deaths” from poor medical care.
Kagan picked up the theme, contending that the state had spent years fighting with the judges but not solving the problem. It’s too late now for “us to re-find the facts,” Kagan said. The California judges had delved into the details for 20 years, and it was time now to decide whether the remedy was right, she said.
Five years ago, then- President George W. Bush strengthened the court’s conservative wing when he named Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. to the court. Smart and capable, they had an immediate effect by combining with the senior conservatives to shift the law to the right on several fronts, most notably on widening the flow of money into politics.
Obama almost certainly had a similar goal in mind, but from the opposite political perspective.
Since October, the court seems to have shifted subtly, judging by the arguments, during which the justices grill the lawyers in an attempt to resolve their own doubts or win over an undecided vote.
Veteran Justices Ruth Bader Ginsburg and Stephen G. Breyer joined Sotomayor and Kagan in sharply questioning California’s lawyer in the prison overcrowding case. Ginsburg wanted to know how he could call the order premature.
“How much longer do we have to wait?” she asked. “Another 20 years?”
Breyer said he studied photos from the prison, and they “are pretty horrendous.”
The outcome in close cases these days almost always turns on Justice Anthony M. Kennedy, and in the California case, he voiced apparent agreement with the liberal critique of the overcrowded prisons. It was “a perfectly reasonable decision,” he said, for the three-judge panel to say, “It’s now time for a remedy.”
Sotomayor and Kagan represent a new generation of Democrats on the courts. Both are single women who grew up in New York City, went to Princeton in the first years that women were admitted there, and excelled at top Ivy League law schools. Early on, they were seen as legal stars who were potential Supreme Court justices.
The two new justices have quite contrasting styles in court, however.
Sotomayor is full of passionate energy, gesturing with her hands and rubbing her brow, as she questions a lawyer. She digs into the facts of a case and presses one point after another.
“Once she gets going, she can dominate the argument,” said Phillips, the veteran Washington attorney who was on the receiving end of Sotomayor’s stop-with-the-rhetoric barrage. “She wears her views on her sleeve. In that sense, she is closer in style to Justice Scalia.”
Her persistence sometimes draws glances and frowns from the other justices, and an occasional verbal gibe as well. When she asked Phillips to respond to her description of ill prisoners sitting “dazed” in filth because they had gone untreated, Scalia intervened with a sarcastic jab at her earlier warning to Phillips.
“Don’t be rhetorical!” he advised.
Chief Justice Roberts, although always polite, intervenes on occasion to ask Sotomayor to hold a question so that someone else can speak.
If Sotomayor’s role is to punch and jab as the liberal foil to Scalia, Kagan’s approach is more that of the bridge builder.
Like the now-retired Stevens, the former Harvard law professor often waits well into the argument before posing a “what if” question. She also deftly plays off points that were raised by her colleagues.
Cool and cerebral, she often cites Kennedy’s comments in phrasing questions, seeming to probe for a point of agreement. When Kennedy commented that the judges in the California case may have gone too far in their order, Kagan picked up the point. Perhaps the state should be given as long as five years to resolve its overcrowding problem, not just the two years set by the three-judge panel, she said.
Off the bench, she has warmly praised Roberts, Kennedy and Scalia. As Harvard law dean, Kagan hosted events to honor Scalia and Kennedy, and she was known as a liberal who had good relationships with conservatives on the faculty.
In Washington, her efforts to build friendships with her colleagues have gone beyond the traditional legal events. On one weekend in late October, she joined Scalia at a Virginia gun club to try her hand at skeet shooting. Kagan reports that she wasn’t good at it, but is inclined to try again.
In court, she has been comfortable in tweaking Scalia. When he mocked one lawyer’s argument in a bank regulatory case, Kagan followed up by observing that “Justice Scalia sort of snidely, but I think accurately,” described an earlier ruling he disagreed with.
In Sotomayor’s first term, she voted with the liberals in all the cases where the court was closely split along ideological lines, and in her strongest dissent, she faulted the majority for weakening the famous Miranda decision and its rule requiring suspects to be advised of their right to remain silent. Three times this fall, she wrote dissents when the court turned down appeals from prisoners. Kagan joined only one of them.
Kagan has yet to cast a public vote in an important case where the court is divided. It will not be until the spring before it becomes clear whether the reenergized liberals can, at least in some cases, form a new majority.
One thing, however, already is clear. Attorneys can expect to be grilled by conservative and liberal judges for years to come.