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Sotomayor, Kagan shift Supreme Court debates to the left

The liberal wing is no longer drowned out by Scalia and his fellow conservatives during oral arguments.

December 26, 2010|By David G. Savage, Washington Bureau
  • From left, Justices Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan in the justices' conference room before Kagan's investiture ceremony.
From left, Justices Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan… (Steve Petteway / Supreme…)

Reporting from Washington — 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.

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