RENEE MONTAGNE, host:
Supreme Court Justice Elena Kagan, the first judicial appointee in 40 years with no prior experience on the bench, seems to be settling into her new job. Of course, she has not written any opinions that have yet seen the light of day, but Kagan has big fans among her colleagues already, including the conservative Justice Antonin Scalia. And she just seems to use an old-fashioned phrase: tickled pink to be there.
NPR's legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: Sitting at the far end of the Supreme Court bench in the junior justice's seat, Elena Kagan looks chipper, cheerful, calm and content. That last word, content, is not one that her old friends would have used to describe her before.
She's always been on a path, observed one friend, looking down the road, striving. And even though she loved being dean of the Harvard Law School, said this friend, there was always this sense that she was pursuing a longer-range goal.
No more. Elena Kagan is where she's always wanted to be, and she loves being there. As a friend told her after seeing the new justice two months after she was sworn in: Man, does life tenure suit you well.
For the junior justice, even what might have appeared a disadvantage has turned into an advantage. Because of her previous job as the government's chief advocate in the Supreme Court, Kagan has had to recuse herself from 27 cases that are on the court's argument docket. Ironically, said a White House aide, that has smoothed her transition because in this first term, she doesn't have such a heavy load.
Nearly all the justices are frank to say that no matter how much previous experience they had, in their first Supreme Court terms, they sometimes felt like they were drowning. In a recent interview with C-span, Kagan, said that she, too, can feel overwhelmed.
(Soundbite of C-span interview)
Justice ELENA KAGAN (U.S. Supreme Court): It's sort of drinking out of a fire hose, you know. It's always something new, something different. The learning curve is extremely steep. Sometimes it seems vertical.
TOTENBERG: But because Kagan is recused from about a third of this term's cases, she's had more time for that climb. So she seems perhaps less winded than other newbies. Kagan says she reads briefs mostly on her Kindle. Her colleagues tease her about her relatively light workload, but she has quickly fit into the rarified and un-rarified world that they live in.
She asked Justice Antonin Scalia, an avid hunter, to take her skeet shooting. And on the bench, she's proved herself an astute and pragmatic questioner, often putting a new cast on queries from other justices. For example, there was this fall's case testing an Arizona program that subsidizes private, mainly religious schools. Because Arizona's state constitution forbids direct aid to religious schools, the state uses a sort of pass-through mechanism to indirectly fund them.
Justice Anthony Kennedy wondered whether a similar mechanism could be used to fund private schools that discriminate on the basis of race instead of religion. Justice Kagan followed up. She noted that while the court has upheld tuition voucher programs, those apply to all comers, equally.
Justice KAGAN: If this was just a straight tuition voucher program, the state could not give tuition vouchers on the basis of religion, could not say, if you're a Catholic, you don't get these tuition vouchers. But what the state has done here, apparently, is to set up a scheme that uses intermediaries that can make exactly that distinction, that can say, sorry, if you're a Catholic, you don't get scholarships.
TOTENBERG: Another case tested when picketers at a military funeral can be sued for inflicting emotional distress on the family of a dead soldier. This time, as she often does, Kagan seemed to be looking for a practical solution to a knotty problem. The picketers here carried signs that read God hates fags and you're going to hell. But Kagan noted that if you let a jury award money damages here, why not when protesters carry signs that say get out of Iraq?
In short, allowing such suits would allow jurors to award damages based on their own tastes or even political views. On the other hand, she asked the lawyer for the picketers: Are there no limits to protests?
Justice KAGAN: Ms. Phelps, suppose your group or another group picks a wounded soldier and follows him around, demonstrates at his home, demonstrates at his workplace, demonstrates at his church, basically saying a lot of the things that were on these signs or other offensive and outrageous things. Does that person not have a claim for intentional infliction of emotion distress?
TOTENBERG: Probing for a way to thread the needle, Kagan asked the lawyer for the dead soldier's family whether the solution might be a general statute that put a buffer zone around funerals.
Justice KAGAN: Pick your distance, 500 feet, 1,000 feet, but something that didn't refer to content, that didn't refer to ideas, that just made it absolutely clear that people could not disrupt private funerals. What harm would that statute not address in your case?
TOTENBERG: There are times, too, when it is clear that Kagan - perhaps because of her experience as Harvard Law School dean - brings an important and different perspective to the court: namely, a familiarity with the youth culture. In a case testing the constitutionality of a California law that bars the sale of violent video games to minors, Kagan had this exchange with the state's deputy Attorney General Zackery Morrazzini.
Justice KAGAN: Do you think "Mortal Kombat" is prohibited by this statute?
Attorney General ZACKERY MORRAZZINI (State of California): I believe it's a candidate, your honor, but I haven't played the game and been exposed to it sufficiently to judge for myself.
Justice KAGAN: It's a candidate, meaning, you know, yes, a reasonable jury could find that "Mortal Kombat" - which is an iconic game, which I'm sure half the clerks who work for us spent considerable amounts of time in their adolescence playing.
(Soundbite of laughter)
TOTENBERG: With Kagan just at the very beginning of her tenure, she knows she has time, most likely decades, to serve. Friends say they have never her so relaxed, so able to be herself, no longer calculating the personal odds of advancement. As one longtime friend put it, she's as happy as I have ever seen her. Then, too, there's the institution she's now part of, an institution composed of people who sometimes passionately disagree, but are invested in the place they work.
Kagan, in her C-span interview, described the day she was privately sworn in last August so that she could begin work before the Court officially began hearing cases in October. The chief justice took her on a little tour of the court, beginning with the robing room, and the wooden lockers that had the justices' names on them: from the most senior, Justice Stevens at one end, to the most junior, Justice Sotomayor, at the other. The tour lasted only about 15 minutes and ended up back at the robing room.
Justice KAGAN: And in that 15 minute time, what had happened was that justice Stevens' name plate had come off, and each of the name plates had gone over one, and now there was a Justice Kagan. It was a very effective way to say to me, well, you're here now. You're part of the community. You're part of the institution.
Nina Totenberg, NPR News, Washington.
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