Justice Kagan, a Court judge and spokesman for the Court, is a very effective questioner. In fact, Justice Kagan is capable of assessing the Court’s atmosphere. She often asks questions to attract moderate Court members to her position. Yet, during DobbsJustice Kagan wasn’t there.
The transcript didn’t contain her first question until page 32. The question wasn’t actually a question. It was a long and rambling discussion about stare decisis. This lasted more than two pages. Justice Breyer could not be as precise as her. She said, “So, I guess that I wanted to hear your reaction to that.” Huh? Kagan appeared so scattered and unfocused when answering this question. This time could have been spent to support Kavanaugh and Roberts or Gorsuch. Kagan wasted this time. Kagan did not follow-up.
Kagan asked her second question during the seriatim round. The second question was from Kagan during the seriatim round. There was also no follow up question. Or an attempt to appeal to Court moderates.
Kagan didn’t have questions for Julie Rikelman as counsel at the clinic. Kagan had only one question for General Prelogar, Solicitor. No follow-up questions, again nothing in the seriatim round.
So what’s the explanation? I suspect that Kagan used her right not to speak in order to allow for maximum negotiation space at the conference. She will make every effort to facilitate the end result. Kagan might even agree to keep Mississippi’s law in place to prevent any wider pronouncements. Roe Casey.
You will find out more in the article. Newsweek Piece soon.