Kagan’s FantasySCOTUS: “I would like to have a Court where there’s more unpredictability of decision-making.”

September 8th, 2012

Justice Kagan took a very apolitical view of her Court, and sought to have the Justices vote more unpredictably.

“There is not a single member of this Court, at a single time, who has made a decision, who has cast a vote, based on do I like this president, do I not like this president … will this help the Democrats, will this help the Republicans?” she said. “It is just not the way any member of the Court thinks.”

Still, she said, “There are certain substantive matters that we divide on because we approach Constitutional decision-making in a different sort of way, because we bring different methodologies to the table, because we have different views about governing precedents and how broad or narrow those precedents are.” The Court, she added, would be better off “if we had fewer of these 5-4 cases. … I would like to have a Court where there’s more unpredictability of decision-making.”

Unpredictable votes? That would be a fantasy Supreme Court.

Kagan also had interesting remarks about cameras in the Court, the power of law clerks, and her duty on the cafeteria committee:

  • aid she used to support allowing cameras into Supreme Court oral arguments, but now wonders whether that would make the institution work “less well,” in part because of her concern that a clip would end up, out of context, on the evening news
  • Said that questioning by the justices during oral arguments has grown more detailed and intense in recent years, starting with Scalia, whose view was: “We’ve all read the brief.… Let’s try to make this hour of our day useful”
  • Disputed a belief that clerks have too much power and influence on the Court’s decisions. “The notion that these 28-year-olds are deciding cases? They’re not.” Clerks are very helpful, though, at deciding which cases the Court should take
  • Pointed out that she, as the junior justice, has to open the door when justices are in conference and a staff member for a fellow justice drops off, say, a cup of coffee or the justice’s glasses; take notes; and serve on the Supreme Court cafeteria committee (where she made the popular decision of having a frozen yogurt machine brought in).

H/T How Appealing