Speaking at Northwestern University Law School this semester, Justice Elena Kagan may have revealed more than she intended. Amidst her entertaining and witty remarks, she described two very different kinds of discussions that take place at the conferences where the justices decide cases. In shorter conferences, the justices, in order of seniority, with the Chief going first, state their votes with brief statements of reasons. Justice Kagan observed that shorter conferences tend to be the high profile cases that appear on the front page of the newspaper. She surmised that further debate in these cases would likely make her colleagues irritated with those of opposing views.
She then described longer conferences, where the justices after stating their positions—sometimes tentative ones– entertain more general deliberations, trying to figure out exactly what the right answer should be. They then focus on and often resolve thorny legal questions. Justice Kagan said that during her time on the Court one of the longest conferences revolved around an obscure jurisdictional issue of the kind that would draw no public attention.
Justice Kagan’s remarks are consistent with my view that we have not one but two Supreme Courts. One is a political court, in which the justices play the aristocratic element in a mixed political regime. Today our aristocratic element consists not of landed nobles but the cognitive elite well represented in judiciary by those who graduated from the nation’s best law schools.