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A Bench of Rivals—A Commentary by Stephen L. Carter ’79

The following commentary was published in The New York Times on May 14, 2010.

A Bench of Rivals
By Stephen L. Carter ’79

PROBABLY the roughest moment of Elena Kagan’s career as solicitor general was her oral argument last year in Citizens United v. Federal Elections Commission, the case in which the Supreme Court struck down Congressionally mandated restrictions on spending by labor unions and corporations to influence the outcome of federal elections.

Almost as soon as she opened her mouth to defend the statute, Ms. Kagan found herself under attack by Justice Antonin Scalia, who interrupted the fourth sentence of her presentation in order to quibble with the third. “Wait, wait, wait, wait,” said Justice Scalia, as Ms. Kagan tried to lay out the issue before the court. He corrected her, she corrected him back, and then he snapped, “I don’t understand what you’re saying” — and all of this before she had actually presented any argument.

Now that President Obama has nominated Solicitor General Kagan to succeed Justice John Paul Stevens, this rocky moment has led to claims that she somehow “blew” the oral argument. If blowing the oral argument is judged according to whether you are interrupted by Justice Scalia right at the start, then just about every advocate with whom he has ever disagreed blew the argument.

Indeed, Ms. Kagan gave as good as she got. Later in her presentation, Justice Scalia again interrupted, to remind her that there are reasons to be suspicious of Congressional regulation of campaigns: “I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents,” Justice Scalia said. He then asked, rhetorically: “Now is that excessively cynical of me? I don’t think so.” Ms. Kagan, without missing a beat, shot back, “I think, Justice Scalia, it’s wrong.”

The more interesting question now being raised is whether this sort of sharp-tongued courtroom sparring between advocate and justice might spill over into relations on the bench. Do memories of these battles linger, or does the camaraderie among the justices overcome it? History provides illuminating examples.

One thinks, for example, of William Howard Taft, appointed chief justice in 1921, joining a court that included Justice Louis Brandeis, whose nomination as associate justice five years earlier Taft had bitterly opposed as a former head of the American Bar Association. By all accounts, their relationship on the court was gentlemanly.

Perhaps more instructive is the experience of Thurgood Marshall, who joined the court in 1967, and for whom Ms. Kagan served as a law clerk (as did I). Like Elena Kagan, Marshall was the solicitor general at the time of his nomination. Unlike Ms. Kagan, Marshall had also been a federal judge. More important, he had been appearing before the court as an advocate for two decades before he became solicitor general. What happened upon his ascent?

When I raised this question in the early 1990s when I was interviewing him for his official oral history project, Marshall assured me that he was welcomed at once, and warmly, by the entire court. He insisted that he had no enemies, even among those with whom he had done battle.

According to Juan Williams’s biography of Marshall, the new justice’s most difficult relations were, initially, with some of the court’s more liberal members. The problem was not any grudges left from oral arguments, but anger over Marshall’s efforts to track down an unpublished dissenting opinion from Brown v. Board of Education that had been written by Justice Stanley Reed, who nevertheless joined the unanimous result. The liberals, to a man, pretended that the draft did not exist. (It did.)

Perhaps the justice with whom Marshall would have been expected to have the worst relationship was Abe Fortas. Fortas had told friends — including fellow justices — that Marshall was an incompetent solicitor general. According to F.B.I. files, Fortas even referred to Marshall as a “dumb Negro.” That Fortas would use this particular phrase seems unlikely, but certainly it captures the flavor of the whispering campaign that he conducted.

Yet, by all accounts, Marshall went out of his way to be friendly to Fortas, and when Fortas became entangled in the financial scandal that would force him to resign in 1969, Marshall wrote several notes of support, urging him to tough it out. Years later Marshall told me that he believed Fortas was a good man who had been unfairly treated.

The Warren court gave way to the Burger court, and new, younger members began chipping at the foundations of his life’s work. Yet I remember, from my time as one of Marshall’s law clerks, the warmth with which he would refer to the more conservative members even as they were being excoriated in the generally liberal law schools.

Marshall’s good relations with the other justices helped him to sway votes his way. To take one example, Juan Williams points to Marshall’s success in persuading Chief Justice Warren Burger to write a broad rather than a narrow opinion upholding busing for school integration.

To the end, Marshall believed in the humanness of those who opposed him — a largeness of spirit that allowed him not only to build coalitions on the court but to sit in smoky back rooms playing poker with some of the worst segregationists of the century. Never did he take the view that another human being, no matter how morally bankrupt, was beneath him.

Perhaps Elena Kagan is not a glad-hander in the Marshall style, but he belonged to another era. Nevertheless, as dean, she brought harmony to a Harvard Law School famously riven by ideological strife, an accomplishment that augurs well for her ability to work constructively in a fractious court.

For years, liberals have longed for a counterweight to Justice Scalia. Maybe what would be better is a Marshall type, less interested in battling than in building. Americans have come to celebrate a politics dominated by a combative political style in which disagreement goes hand in hand with dislike. The Supreme Court should be the last place where we want that contagion to spread.

Stephen L. Carter is a professor at Yale Law School and the author of “The Confirmation Mess: Cleaning Up the Federal Appointments Process.”