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Monday, September 28, 2009

You’re about to argue a case before the Supreme Court and are deep in preparation, but the big question continues to nag at you…


When, earlier this year, former PJP Board member Elena Kagan was named as the first woman Solicitor General in American history, speculation abounded. Few challenged Kagan’s impeccable pedigree (she left her job as dean of Harvard Law School to accept the post), but Washington whisperers wanted to know presumably something much more important: would she don the traditional swallow-tail morning coat as every Solicitor General before her has, or make a break with the past and arrive before the justices in something less formal?

Appearing before a judicial conference in Monterey earlier this year, Kagan answered that question by saying she wanted to keep it a secret. “If I told you, I’d have to shoot you,” she joked with the moderator of the panel, Ninth Circuit Chief Judge Alex Kozinski. But the excitement ended in September when SG Kagan appeared before the Court for the first time in an unusual pre-term argument, wearing a dark pantsuit and open-collared blouse, relegating the morning coat to history's closet. Even then, cameras not being allowed in the courtroom, a few bloggers argued: was it dark blue or black?

If the justices were flummoxed by this sartorial radicalism, they did not show it. But one had to wonder. A couple of years ago, when SG Paul Clement appeared before the Court, Antonin Scalia, with whom Clement had clerked a few years back, chided him for wearing a black vest. “As you know, all change is presumptively wrong,” he insisted, adapting his conservative legal philosophy to the field of court attire. The vest should be a pearl gray. Yet later, after the Court’s curator studied the question, Scalia had to retract his objection and bow to precedent: long before the gray vest appeared in the Court, black was the preferred color. Now one had to wonder: what piece of judicial activism led them astray?


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