- The Washington Times - Monday, October 4, 2010

Supreme Court Justice Elena Kagan took her seat on the bench Monday, the first time three women sat on the nation’s highest court — a historic moment that solidified a core of justices who are likely to serve for years, if not decades, to come.

The Supreme Court’s term opened with arguments in a case involving an esoteric bankruptcy issue: whether a debtor can deduct from the amount paid to creditors the cost of car payments even if no money is owed on the car, that is whether such a deduction can be considered standard for all those in bankruptcy.

Justice Kagan jumped into the fray quickly with several pointed questions and hypotheticals, but she left the bench before the start of the second case, which related to the application of a complex federal sentencing law.

Her leaving the bench after hearing one of the day’s two arguments started a trend for the term because she has recused herself from roughly half the cases on the docket. Justice Kagan has an unusually large number of recusals in order to avoid conflicts of interest resulting from her previous job as solicitor general, in which she represented the federal government at the Supreme Court.

“What would happen if you didn’t actually have any out-of-pocket medical costs? Could you still claim a deduction for out-of-pocket medical costs?” Justice Kagan asked in the bankruptcy case, drawing a comparison between how car payments and medical expenses are handled in bankruptcy cases.

An attorney for Jason Ransom, a Las Vegas man in bankruptcy trying to shield from creditors the nearly $500 monthly deduction allowed for car payments though he owns his car outright, told Justice Kagan that a deduction can be claimed for unpaid medical costs.

Justice Kagan, who delivered her questions in a deliberate but measured voice, later asked an attorney for MBNA Corp., the creditor in the case, “What would happen if the debtor had a car that had 200,000 miles and it was going to break down within the next five years? Would the debtor then be able to take the deduction?”

The creditor’s answer was no.

The justices seemed relatively unimpressed with the positions articulated by both sides. “Your argument leads to a result that is just as absurd as your colleague’s on the other side,” Chief Justice John G. Roberts Jr. said at one point to the attorneys for the creditor.

Monday marked the second straight term in which the court seated a new justice.

Last year, Justice Sonia Sotomayor, President Obama’s first appointee to the court, took the seat of retired Justice David H. Souter. Her first case was a rare rehearing during the summer, before the official term began. In that landmark case, Citizens United v. Federal Election Commission, the court scaled back campaign finance laws aimed at restricting corporate donors.

Justice Sotomayor asked a few questions during the Citizens United case, but was more active during the first case of the official term. Making use of expertise in criminal procedure that she honed as a prosecutor and a federal judge, Justice Sotomayor asked dozens of questions during a case involving a suspect’s Miranda rights.

Justice Kagan, who had never before donned the robes of a judge, played a smaller role during Monday’s arguments, but the significance of her presence was profound. It marked the first time three women — Justices Kagan, Sotomayor and Ruth Bader Ginsburg — have sat on the court together. The only other woman ever to sit on the Supreme Court is retired Justice Sandra Day O’Connor.

Justice Kagan spent the majority of her career in academia, most recently as dean of Harvard Law School. She left that post when Mr. Obama tapped her as solicitor general.

She succeeds Justice John Paul Stevens, a Gerald Ford appointee who retired at age 90 after 35 years on the bench. Justice Kagan is 40 years younger than Justice Stevens, and her appointment gives the court a majority of justices who are younger than 65.

The others are Chief Justice Roberts, 55; Justice Clarence Thomas, 62; Justice Samuel A. Alito Jr., 60; and Justice Sotomayor, 56. It is feasible that those five justices will remain on the court for the better part of the next two decades.

Chief Justice Roberts and Justices Thomas and Alito are considered conservative, while Justices Kagan and Sotomayor are considered liberal.

• Ben Conery can be reached at bconery@washingtontimes.com.

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