Kagan Only Justice to Experience 8-Member Court

The gold standard of excellence for more than 80 years, Bloomberg BNA’s The United States Law Week® is the most authoritative way to keep up with important cases and other legal developments...

By Kimberly Robinson

Feb. 24 — The most junior U.S. Supreme Court justice—Elena Kagan—is “the only member of the Court to have experienced an extended vacancy” there, UCLA Law's Adam Winkler told Bloomberg BNA.

Kagan was a clerk from 1987 to 1988, when Justice Lewis F. Powell Jr.'s seat—eventually filled by current-Justice Anthony M. Kennedy—sat vacant for nearly eight months.

With the current potential for a long vacancy looming, that experience could give Kagan unique insight into how the court can go forward with a thin bench .

“Kagan can be a voice of experience among the justices as they sort through the challenging questions they face about how to deal with a vacancy,” Winkler, a constitutional law professor, said.

Avoiding 4-4 Decisions

“Kagan served as a law clerk to Justice Thurgood Marshall from 1987 to 1988,” AboveTheLaw.com founder David Lat told Bloomberg BNA.

Lat said a Supreme Court clerkship provides invaluable experience into how the justices “negotiate with each other in reaching their rulings.” Lat authored a novel about clerking, “Supreme Ambitions,” and clerked on the U.S. Court of Appeals for the Ninth Circuit.

When Kagan clerked, the chief justice was “William Rehnquist, who was known to be an excellent leader of the Court,” Winkler added.

“Kagan may have seen how Rehnquist managed the vacancy and avoided 4-4 decisions,” he said.

1987 Term

Former Scalia clerk Richard D. Bernstein—who clerked with Kagan—confirmed that there was a conscious effort during the 1987 term to avoid 4-4 decisions.

Such equally divided outcomes leave in place the lower court's ruling.

The court wanted to avoid the ambiguity of the plurality decisions of the 1970s, Bernstein said.

For example, during the 1970 term, there were 15 plurality decisions, according to a 1974 Duke Law Review article. A plurality opinion is one that garnered more votes than any other opinion, but still didn't receive a majority of the votes in total.

Four justices—William J. Brennan Jr., Byron White, Marshall and Harry A. Blackmun—served during both the 1970 and 1987 terms.

The court doesn't like to be seen as an institution that isn't working, Bernstein said.

To avoid that appearance, the court during the 1987 term decided cases on the most narrow ground that could garner a majority, ordered reargument in some cases once the court was up to full power, and curtailed the number of controversial cases it agreed to hear, Bernstein said. 

Kagan: Shepherd or Sheep?

Kagan's “greater insight into the workings of the Court and the justices' interactions with each other” will be “more important than ever with only eight justices on the Court and no ninth justice to break ties,” Lat said.

Only two other current justices—Chief Justice John G. Roberts Jr. and Justice Stephen G. Breyer—have experience clerking on the Supreme Court. They didn't clerk while there was a vacancy, though.

Winkler noted that “The vacancy in 1987 is very much like the one today.”

“The Court was evenly split between conservatives and liberals. People thought a new justice would likely transform the Court for years to come. The vacancy took nearly a year to fill. And it was filled, ultimately, in a presidential election year,” Winkler said.

Even though President Barack Obama emphasized Kagan's consensus-building skills when he nominated her to the high court bench, Lat was skeptical of the idea that Kagan would play a dominant role in guiding the court through the difficult time ahead.

“I don't know that Justice Kagan's experience as a law clerk will enable her to play any special role at the Court during this period,” Lat said. “She is the newest justice, so her senior colleagues have the benefit of greater experience and knowledge of the Court gleaned during their additional years of service as justices.”

Winkler was less equivocal.

“Kagan will not be called upon to shepherd the Court through this trying time,” he said. “That responsibility falls to the Chief Justice.”

To contact the reporter on this story: Kimberly Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com