‘We enjoy this sometimes’: The rhetorical battle between Justices Alito and Kagan at the Supreme Court
CNN
By Joan Biskupic, CNN Chief Supreme Court Analyst
(CNN) — The morning after Donald Trump was reelected president, Justices Samuel Alito and Elena Kagan began jousting more than usual.
They personify the ideological and political gulf on America’s highest court. Alito, a 74-year-old Trenton, New Jersey, native is prepared to tear through decades-old landmarks, while Kagan, a 64-year-old New Yorker and one of three remaining liberals, clings to them.
The rhetorical sparring this session highlights a pattern between two forceful justices that is likely to intensify when the Trump administration takes office and bold new policies face lawsuits.
On the bench and in opinions, Alito has been markedly irritated in recent years, even as his positions on the law have largely prevailed. His mood has helped fuel speculation over his possible retirement with a new Republican president in office to appoint his successor. Still, 74 is relatively young for a justice to leave the bench.
And Alito remains engaged in the courtroom Q-and-A, unlike some justices as they neared retirement, including Anthony Kennedy as he came close to his 2018 departure.
More than other justices on their respective sides, conservative Alito and liberal Kagan are sharp-tongued strategic questioners. They are both keenly aware of which other justices might be in play – open to persuasion – during arguments in a case. They come to the courtroom armed and ready to expose the weaknesses of positions voiced at the lectern by opposing lawyers.
They sit next to each other on the elevated bench, by virtue of their respective seniority among the nine justices. On the law, however, Alito and Kagan are miles apart.
Most of the down-to-the wire cases go the way of Alito and the conservative majority. The few liberal wins typically come at the expense of Alito. An example from last session was the court’s dismissal of Idaho’s effort to enforce its abortion ban in emergency rooms, when women with pregnancy complications may need the procedure and be protected by a federal policy allowing termination.
One of Alito’s most significant and stinging losses occurred in 2020, when a coalition of conservative and liberal justices endorsed transgender rights in the workplace. He wrote an unusually long dissent, revealing his pique over 54 pages, beginning with the opening: “There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.”
The Wall Street Journal editorial page, especially solicitous of Alito, had warned as negotiations were underway that Kagan was privately influencing internal debate, ready “to lure” key justices away from Alito’s position. When the decision came down, it ran an editorial entitled, “Another win for the Kagan Court.”
The new legal issue on November 6, the day after Americans put Trump back in the White House, was whether Facebook’s parent company, Meta, had wrongly depicted information about a data breach on risk-disclosure forms as purely hypothetical.
Investors claimed the company had concealed an actual breach of millions of Facebook users’ information by Cambridge Analytica in 2015, before the 2016 US presidential election. The group of investors led by Amalgamated Bank brought the class action, alleging Facebook had misled them about business risks in violation of securities law, and a US appellate court, over Facebook’s objection, had ruled the lawsuit could proceed.
As usual, Alito and Kagan began referring to each other’s questions but with barely a glance toward the other at their elbow. While Kagan made clear she believed the court should not have taken Facebook’s appeal, Alito sounded open to its arguments, and he posited a series of situations that seemed too outlandish to require disclosure.
He offered a hypothetical involving a fire that broke out when “a meteorite fell out of the sky or some crazy person who was hearing voices decided that person was going to throw a Molotov cocktail in the window of this plant.”
Alito asked a Justice Department lawyer who was siding with the shareholders, “You would say you’ve got to disclose that because a reasonable investor would want to know … maybe because the investor would think the place is haunted or it’s cursed because this happened in the past?”
Kagan interjected: “Well, isn’t what the reasonable investor would want to know in that situation … is that there wasn’t any plant. No matter what had caused the fact there wasn’t any plant, there wasn’t any plant. So there wasn’t going to be any output, so there wasn’t going to be any business.”
Alito jumped back in regarding his fire scenario: “It doesn’t wipe out the plant. It causes a certain amount of damage, and then it’s brought under control.”
“No,” Kagan said, “So, still, what the reasonable investor would want to know is…”
She suddenly stopped herself and, gesturing toward Alito, told courtroom spectators, “We enjoy this sometimes.”
“Only,” Chief Justice John Roberts said softly, “only sometimes.”
(On Friday, the justices dismissed the case of Facebook v. Amalgamated Bank, in a one-sentence unsigned statement that provided no explanation beyond that it had been “improvidently granted” a hearing. The action allows the securities-fraud litigation to go forward.)
‘Your answer is much better than mine was’
As Alito and Kagan try to steer oral arguments, pummeling the lawyers in the well of the courtroom with questions, they become dueling advocates themselves. They’ll provide more pointed answers than an attorney has offered in the moment, cutting in with something along the lines of “you might have said …”
That happened in mid-November during arguments in a separate securities fraud lawsuit, centered on Nvidia, the artificial-intelligence chipmaker. It arose from allegedly misleading statements by CEO Jensen Huang about revenue from the volatile cryptocurrency-mining market in 2017 and 2018. The question was whether the private litigants, led by a Swedish investment management firm, had met a preliminary threshold for their claim against the company.
Skeptical of the litigants’ case, Alito asked their lawyer Deepak Gupta why Huang would have put out financial information that could be quickly exposed as wrong. What motive, Alito asked, could Huang have had “for making a statement that is so far off and that – if you are correct, if the over a billion dollars figure is correct – is surely going to come to light with severe consequences?”
As Gupta responded, he suggested Huang might have calculated that market forces would conceal any deception, and Gupta began with a provocative reference to a Ponzi scheme.
“Huang might have thought what a lot of people think when they’re carrying out a fraudulent scheme, in a Ponzi scheme, for example, which is that people might not find out and the reality might not catch up with them. And just imagine that the crypto crash had happened a bit later. Nvidia is now a company whose sales rely on the need for these chips for artificial intelligence. If that artificial intelligence demand had arrived a little bit earlier and the crypto crash had happened a little bit later, this fraud would not have been recognized and there would not have been the crash, and so he may have been relying on precisely that kind of hypothetical scenario.”
Alito latched onto the opening reference. “You really don’t have a better explanation?” he said. “It’s a Ponzi scheme?… A gigantic company with highly sophisticated officers is engaging in a Ponzi scheme?”
A few minutes later, Kagan picked up that thread to assist Gupta, representing the challengers to Nvidia.
“If I could go back to the questions that Justice Alito asked you, because it strikes me that from your answer, the Ponzi scheme is a bad term for what you’re suggesting.”
“You’re actually saying,” Kagan continued, “if things had worked out a little bit differently in the market for crypto and in other markets that Nvidia was involved in, Nvidia is now the company that’s sending the stock market into the stratosphere, we would never have known about this. … So Mr. Huang might have been making a pretty good bet here.”
“Exactly,” Gupta said. “And your answer is much better than mine was. Right. Exactly.”
Attacking the solicitors general
For Alito, a business-minded conservative, plaintiffs’ lawyers are a common target. The same goes for criminal defendants. He was a federal prosecutor before first donning the robe as a US appellate court judge in 1990.
Yet Alito reserves special hostility for Biden administration positions, most visibly when US Solicitor General Elizabeth Prelogar is at the lectern defending such progressive causes as abortion rights and affirmative action.
Their interactions, distinct from any justice-vs-justice conflict, occupy their own category of rivalry. Neither Alito nor Prelogar backs down. Court watchers often circulate audio of their exchanges on social media and debate who got the better of the exchange.
Prelogar, who once served as a law clerk to Kagan, will appear before the justices on December 4 in one of the most anticipated cases of this term: US v. Skrmetti. The Biden administration is challenging state bans on certain medical care for transgender minors. The case could give the justices an opportunity to revisit the 2020 ruling in Bostock v. Clayton County, to which Alito wrote a lengthy dissent.
Then, early next year, Biden’s solicitor general will be succeeded by the Trump administration solicitor general, and Alito and Kagan are likely to flip roles.
John Sauer, who successfully defended Trump in his immunity-from-prosecution case and has been designated for the solicitor general post, would certainly face less confrontational questioning from Alito. When the court heard the Trump immunity assertion last April, Alito’s queries to Sauer were not particularly demanding and allowed Sauer to make his case for substantial immunity from prosecution for Trump.
Alito was also receptive to the first Trump solicitor general Noel Francisco. Kagan, on the other hand, tried to pin Francisco against the wall.
Stepping over one another
The two justices radiate strikingly different dispositions.
Kagan, a former Harvard law dean, is a natural wit and dealmaker, adept at reading the room. She is always searching for votes, a habit crucial now because of her position in the liberal minority.
She pays special attention to Justice Amy Coney Barrett, the conservative who seems most inclined to move toward the center of the bench at times.
Alito’s antennae are similarly up during arguments. But the author of the Dobbs opinion that reversed nearly a half century of abortion rights exudes a sober, solitary demeanor and is not an easy conversationalist.
When President George W. Bush interviewed him as he was screening Supreme Court candidates, the President was struck by how hard it was to break through. Bush, a former owner of the Texas Rangers, later wrote in his memoir that he steered the conversation to Alito’s beloved baseball and the Philadelphia Phillies. “Sam is as reserved as they come,” Bush wrote. “As we talked about the game, his body language changed.”
Alito won Senate confirmation in 2006. Kagan, an appointee of President Barack Obama, joined the court in 2010. They are now in their 15th session together.
When the current term began in early October, Alito and Kagan wasted no time seizing on each other’s hypotheticals.
The case that opening day centered on a federal civil rights lawsuit brought by people in Alabama whose claims for unemployment benefits after the Covid-19 pandemic had languished.
The Alabama Supreme Court had ruled against them, saying they were barred from proceeding on their claim under the Reconstruction-era law known as Section 1983, until they had “exhausted” state channels. But the crux of the legal issue was, in fact, the state’s inaction on their benefit claims and stringent time limits appeal.
Their lawyer, Adam Unikowsky, told the justices from the lectern: “The Alabama Supreme Court reached the Kafkaesque conclusion that Petitioners could not challenge their inability to exhaust precisely because of their inability to exhaust.”
When Alabama state solicitor general Edmund LaCour was then up, seeking to preserve the Alabama Supreme Court decision, Kagan said, “I’ll give you just a couple hypotheticals. So one is, suppose we take this out of the employment context. We’re not talking about a benefit of any kind. There’s a person who has a quintessential 1983 claim, which is the improper use of police force. And Alabama sets up a scheme where you have to go to the police department first and you have to go through these three levels of review before you can bring that to court. Is that perfectly okay?”
LaCour evaded the hypothetical by adding several conditions, which prompted an exasperated Kagan to say, “Well, if, if, if.”
“Let’s just say it’s the same kind of thing, but it’s in the police context. It’s the same time limits. It’s the same everything,” she said, pointing up the consequences of trapping victims in a bureaucracy with no way to vindicate their rights.
LaCour started to respond, but Alito interrupted him. Alito launched into a question that went in the opposite direction from Kagan’s point, stopping Kagan’s momentum.
Then Alito said, “Well, I don’t want to derail … Justice Kagan had a number of hypotheticals, but I don’t want to interrupt that.”
Kagan seemed miffed, but only slightly. She may have sensed that most of the justices were similarly troubled by the Alabama solicitor general’s position and ready to side with the unemployed claimants.
“It doesn’t matter which way we do it,” she said, and she let Alito go.
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