Justice Elena Kagan, Comedian

The junior Justice is out and about, pitching the view that the Supreme Court these days is one big hug fest.

Look, we all know that Elena Kagan has a sense of humor. She was a hoot at her Supreme Court confirmation hearing in June 2010. And she was a positive laugh riot the other night at the University of Michigan.

Just two years into her gig as the Court's junior justice, and just two months removed from the most contentious Court term she is ever likely to face, Justice Kagan told her audience Friday evening that the atmosphere at the Court is 'in some ways, the most intimate, warmest institution I've participated in." Yes, and her tenure with the Mayfield Road Mob was a close second. I suspect the good folks at the U.S. Solicitor General's Office and Harvard Law School, two American institutions well known around the world for their great "intimacy" and "warmth," were disappointed that alum Kagan didn't give them the nod.

When I read this quote, I wished for a moment that I could have been in the room with Justice Kagan when she said it -- in a room, anyway, where she could pivot on that phrase and, with her great wit, candidly say aloud what any good comedian would have said with such a great lead-in. Can't you just hear the voice of Rodney Dangerfield teeing off on the "in some ways" construction? Or Tina Fey? Or Woody Allen? Or Chris Rock? Or heaven help us, the late, great George Carlin? "Yes," he might growl, "when I think of the Supreme Court today I think of the warm intimacy of Justice Clarence Thomas."

And then Kagan ventured further into farce. As The Detroit News reported, she then said: "Sometimes you read these opinions and you think 'they must hate each other.' It's just not true," she said. "We have enormous respect for each other and a feeling that we are all operating in good faith... If you take this stuff personally, this is going to be a long life tenure." Indeed, it will be if Justice Kagan and her conservative doppleganger, Chief Justice John Roberts, continue to be locked in an ideological death spiral for the next 30 years (don't laugh -- they are both still in their 50s).

It always strikes me as odd when public officials tell their constituents to disbelieve what they see with their own eyes. There is, after all, a huge contrast between the Supreme Court Justice Kagan describes and the one described so memorably in early July by my CBS News colleague Jan Crawford, a longtime Supreme Court reporter with strong conservative chops. In Crawford's dramatic account, the Court's conservatives split over the health care ruling this spring -- with the Chief Justice on one side and his fellow travelers on the other. From Crawford's online piece:

But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, "You're on your own." The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress' power under the Commerce Clause, the sources said. Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts' decision, the sources said, as if they were no longer even willing to engage with him in debate.

Now, I believe that Justice Kagan has read Crawford's piece. I believe that Justice Kagan lived through some of the events in Crawford's piece. And I believe that Justice Kagan believes that it serves some purpose to tell audiences that being on the Supreme Court these days is one big hug fest. Maybe she reckons that if she says it enough times aloud, it will remind her and her colleagues that -- while the country may have given up on Congress -- it still wants to believe that the ideologues on the High Court can rise above partisanship. Or maybe she just says it because it's the sort of thing a justice is supposed to say.

Whatever the case, Justice Kagan's platitudes about the Court are funny because of the stuff she leaves unsaid, the punchlines we know she is holding within herself, as she gears up for another tumultuous term. (Gay rights, voting rights, and the end of affirmative action likely all will come before the justices between now and next June). Maybe she is funnier in our imagination than she would be in real life. Then again, maybe not. At her confirmation hearing, she said it would be "terrific" if the Court's oral arguments were televised. Now, just two years later, she says she has "a few worries" about it. Funny, that Justice Kagan.

Presented by

Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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