Hazing Justice Kagan.

In The American Prospect's long article about Justice Kagan, here's how she describes the role of the "Junior Justice" (i.e., the Supreme Court Justice with the least seniority) in the conferences (where only the Justices are present):

"So somebody has to do two things. The first is that somebody has to take notes, so you can then go out and tell people what just happened, and I take notes. That�s the Junior Justice�s job. The other thing is that you have to answer the door when there�s a knock on the door. Literally, if there is a knock on the door and I don�t hear it, there will not be a single other person who will move. They just all stare at me until I figure out, �Oh, I guess somebody knocked on the door.� These two jobs, the note-taking and the door-opening�you can see how they can get in the way of each other, right? You might say, what do people knock on the door for? Why does anybody knock on the door? Knock, knock�I�m not going to name names��Justice X forgot his glasses.� Knock, knock, �Justice Y forgot her coffee.� There I am, hopping up and down. I think that�s a form of hazing, don�t you?"

IN THE COMMENTS: First, some people aren't picking up the good humor in Kagan's storytelling. But more importantly, Michael Arndorfer says: "You blogged this in November. Only also tagging it as bullying." What? This is a new article. Is the new article passing along an old quote of Kagan's? I found the post from last November: "Hazing and hunting on the Supreme Court." It has a very similar, but not exactly similar quote (from People Magazine):

"I take notes as the Junior Justice � and answer the door when there's a knock. Literally, if there's a knock on the door and I don't hear it, there will not be a single other person who will move. They'll all just stare at me. You might ask, Who comes to the door? Well, it's knock, knock, 'Justice X forgot his glasses.' And knock, knock, 'Justice Y forgot her coffee.' There I am hopping up and down. That's a form of hazing, right?"

2 questions: 1. Did The American Prospect lift the quote from People (and change it) or does Kagan keep retelling the story? Answer: The latter, probably. It's a better explanation of all the little differences. 2. Should I be ashamed of myself for not noticing I'd already blogged this or proud of the consistency of my taste in bloggability and method of blogging? Answer: Both!

ADDED: My answer to Question 1 failed to account for the quirks of transcriptions from recorded speech to text. This is a topic about which Janet Malcolm wrote in the important book "The Journalist and the Murderer" (the best book about journalism that I've ever read):
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"You think that there are circumstances in which burning alive would not be a violation of the Eighth Amendment? Burning somebody alive would not be a violation of the Eighth Amendment?"

Justice Alito expressed amazement at the hedging of the the lawyer who opposed the way the state of Oklahoma delivered the death penalty. Listen:



The case is Glossip v. Gross, and the question is about the drug that is supposed to leave the condemned man completely unconscious while another drug kills him. This strange colloquy took place at the end of the argument: Click for more �

"Nary a 'no' vote in Louisiana House on resolution urging Ginsburg, Kagan recusal in gay marriage case."

Reports The Times-Picayune.

Justices Ruth Bader Ginsburg and Elena Kagan "have each engaged in public conduct suggestive of bias," reads Louisiana House Concurrent Resolution 85, sponsored by state Rep. Valerie Hodges, R-Denham Springs. In engaging on the issue of same-sex marriage, the justices have "thus demonstrate(d) an inability to be objective," and should therefore withdraw from the Obergefell v. Hodges case, the resolution says.

Embarrassing. 

And why Ginsburg and Kagan in particular? What was the "public conduct suggestive of bias"? Just because you can predict in advance where their thinking on a legal issue will lead them doesn't mean they are any more biased and bereft of objectivity than anyone else on the Court. In fact, unpredictability is more suggestive of bias. Consistency in legal reasoning, case by case and in expressions about law, suggests that you are following the norms of constitutional interpretation.

ADDED: A commenter says that the "public conduct" is officiating at same-sex wedding ceremonies. I'm seeing this at The Hill:

�Justices Ginsburg and Kagan, knowing full well that unique legal issues regarding the definition of marriage would soon come before them, deliberately officiated at so-called homosexual wedding ceremonies creating not merely the appearance of bias, but an actual and blatant conflict of interest,� [said Scott Lively, president of Abiding Truth Ministries].

�In my personal view they have committed an unparalleled breach of judicial ethics by elevating the importance of their own favored political cause of gay rights above the integrity of the court and of our nation.�

I don't see how participating in a wedding ceremony is a statement that you think there is a constitutional requirement that states must recognize same-sex marriage. Presumably, same-sex marriage was either already recognized in the place where Ginsburg/Kagan was performing the ceremony or it was a ceremony that wasn't recognized as creating a legal marriage. That probably shows they approve of same-sex marriage, though what Ginsburg did was perform a wedding for a former law clerk. Maybe she just treats all her former law clerks the same.

Anyway, doing something doesn't mean you believe you have a right to do it, and it would be utterly unworkable to say judges who do something must recuse themselves in cases about whether there is a right to do something. Should a judge who's had an abortion have to recuse herself in abortion cases? Should a judge who has given a speech have to recuse himself in a free speech case?

ALSO: A separate question is: Let's assume that doing something does equal a statement that one has a right to do it. Is belief that a right exists bias? I can't see that. I think the argument is more that a decision about the law was arrived at too early. But that doesn't make sense. Judges are always thinking, writing, and speaking about the law, forming beliefs about the answers. There's nothing wrong with that. I know there's this idea that Supreme Court Justices shouldn't express their conclusions about cases that might later come before the Court. That's the stock answer to every other question at confirmation hearings, though the Senators doing the questioning don't seem to think there's anything wrong with repeatedly inviting nominees to tip their hand.

There was a famous instance of a recusal by a Justice who tipped his hand about a pending case. Back in '03, Justice Scalia dropped out of the case about whether "under God" in the Pledge of Allegiance violated the Establishment Clause:

According to press accounts, in his talk to the Knights of Columbus, Justice Scalia adverted to the lower court rulings in the Newdow dispute twice -- both in his prepared remarks and in response to a protestor in the audience.

First, Scalia mentioned prior rulings by his own Court indicating that government could not favor any religious sect or religion over non-religion. He observed that such rulings were "contrary to our whole tradition, [and] to 'in God We Trust' on the coins," and said that these rulings had created inconsistencies that lent "some plausible support" to the lower court rulings in Newdow.

Second, when Scalia saw a protest sign in the crowd, he remarked: "The sign back there which says, 'Get religion out of government,' can be imposed on the whole country. . . . I have no problem with that philosophy being adopted democratically. If the gentleman holding the sign would persuade all of you of that, then we could eliminate 'under God' from the Pledge of Allegiance. That could be democratically done." Scalia thus arguably implied that the elimination of the "under God" phrase could not be accomplished by any Court -- even his own.

Was that recusal required or even advisable? I don't think so. And I'm suspicious. I think the recusal served the interests of conservatives. As it happened, the Supreme Court weaseled out, but if the Court's liberals had not figured out a way to avoid the merits � they used standing doctrine � they might have had to say that "under God" violated the Establishment Clause, and that would have been very useful to conservatives in the 2004 presidential election. It was well-remembered that in the 1988 election, George H.W. Bush had battered Michael Dukakis over the Pledge of Allegiance:

With President Reagan at his side in a raucous campaign rally here, Vice President Bush intensified his argument with Michael S. Dukakis today over the Pledge of Allegiance. He said he would have signed a bill that Mr. Dukakis vetoed in 1977 requiring teachers to lead their classes in the pledge.

'What is it about the Pledge of Allegiance that upsets him so much?'' Mr. Bush said of Mr. Dukakis, as an enthusiastic crowd roared its agreement. ''It is very hard for me to imagine that the Founding Fathers - Samuel Adams and John Hancock and John Adams -would have objected to teachers leading students in the Pledge of Allegiance to the flag of the United States.''

Newdow was a rich political opportunity, and I'm sure Scalia knew that. So one could say that his recusal was biased, since he would have voted on the side that would not have leveraged the conservative presidential candidate.

"I mean, suppose somebody submitted a license plate to Texas that said, 'Vote Republican,' ��and Texas said, yes, that's fine."

"And next person submitted a license plate to Texas and it said 'Vote Democratic,' and Texas said, no, we're not going to approve that one. What about that?" asked Justice Kagan in yesterday's oral argument about whether Texas could reject the specialty license plate proposed by the Sons of Confederate Veterans. (We talked about the case yesterday here.)

The lawyer for Texas said � lamely � "Yeah, Justice Kagan, I don't think our position would necessarily allow that...." And she was all "But why... why wouldn't it allow that?"

Here's the oral argument transcript (PDF). The lawyer (Scott A. Keller) had no good answer, as far as I can tell.

Reading the King v. Burwell transcript.

Here's the PDF of today's oral argument. I'm going to read it right now and give my immediate impressions.

1. Justice Alito topped Justice Kagan at page 11, lines 7-13. Kagan had just sprung her elaborate clerks-writing-memos hypothetical, and Alito said "Well... if I had those clerks, I had the same clerks and Amanda wrote the memo, and I received it and I said, This is a great memo, who wrote it? Would the answer be it was written by Will, because Amanda stepped into Will's shoes?" Kagan had to respond to the laughter in the courtroom: "He's good."

2. Justice Sotomayor stumbles at page 16, line 2, after raising a principle of statutory interpretation from last year's Bond case (the chemicals-on-the-doorknob case, where the Court read a federal statute not to criminalize a matter that lay within the traditional powers of the state). She'd just spoken for a page and a half, and the petitioners' lawyer Michael A. Carvin was beginning to explain that this principle had never been applied in the context of a condition on federal spending. Sotomayor interrupted to "Oh, we did it -- we said it last year." But she just meant to repeat her point about Bond, which wasn't about conditional spending.
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SCOTUSblog reports from the oral argument in King v. Burwell.

By Eric Citron. Excerpt:

[Justice Kagan... offered (something like) the following example:  Imagine I tell law clerk A to write a memo, and law clerk B to edit law clerk A�s memo, and then I tell law clerk C to write such memo if law clerk A is too busy.  And imagine that happens � law clerk A is too busy, so law clerk C writes it.  Should law clerk B edit it?... In response, petitioner�s counsel said that the context mattered, and it would depend on whether the Justice was indifferent between law clerk A and law clerk C writing the memo in the first instance.  But that seemed to play into Justice Kagan�s hand, who made clear that this was her point � that in understanding this text, the context obviously mattered....

[Justice Kennedy]... pointed out that, under petitioners� reading, the federal government would be all but forcing states to create their own exchanges.... not just [because otherwise] their citizens would be denied benefits... [but also because] state insurance systems will fail if the subsidy/mandate system created by the statute does not operate....  For Kennedy, that seemed to make this case an echo of the last healthcare decision, where the Court concluded that it was unconstitutional coercion for the federal government to condition all Medicaid benefits in the state on expanding Medicaid therein....  Justice Scalia attempted to respond on petitioners� behalf that such concerns do not enter if the statute is unambiguous, but Justice Kennedy reiterated his concern with adopting a reading that would create such a �serious unconstitutional problem.�

ADDED: I need to see the whole transcript � context matters! � but if this accurately portrays Kennedy's overall analysis, I think the government will win. This idea is that the challengers' interpretation asks the Court to read the statute to do something that would have to be stricken down as unconstitutional, because it would coerce the states to set up the exchanges. Congress lacks the power to commandeer the states and may only offer the states a choice. If the incentive to make the choice Congress wants is too heavy-handed � as it was with the Medicaid expansion in the 2012 Obamacare case � the would-be incentive is viewed as coercion. So if the provision is unconstitutional under the challengers' interpretation, in Kennedy's view, he will have reason to agree with the government's interpretation (that is, he would follow the doctrine of constitutional avoidance).

AND: SCOTUSblog has a second person, Tejinder Singh, also doing mid-argument reporting. Excerpt:

Justice Breyer [noted] that if the phrase �established by the state� is read to exclude exchanges created by HHS, then other provisions of the statute that also use that phrase would be rendered inoperative or nonsensical... The statute provides that insurance shall be made available on exchanges to �qualified individuals,� and further defines a �qualified individual� to mean, �with respect to an Exchange, an individual who� both wants to enroll in a qualified plan, and also �resides in the State that established the Exchange.� The government, as well as Justices Breyer and Kagan, argue that if the only way for a state to �establish� an exchange is to create it on its own, then there would be no �qualified individuals� in states that failed to do so, and therefore there would be nobody on the [HHS] exchanges (and, as Justice Kagan surmised, no product to sell on the exchanges).