‘We enjoy this sometimes’: The rhetorical battle between Justices Alito and Kagan at the Supreme Court

Alito and Kagan are sharp-tongued strategic questioners and both keenly aware of which other justices might be in play – open to persuasion – during arguments in a case

The morning after Donald Trump was reelected president, Justices Samuel Alito and Elena Kagan began jousting more than usual. They personify the ideological and political gulf on America’s highest court. Alito, a 74-year-old Trenton, New Jersey, native is prepared to tear through decades-old landmarks, while Kagan, a 64-year-old New Yorker and one of three remaining liberals, clings to them. The rhetorical sparring this session highlights a pattern between two forceful justices that is likely to intensify when the Trump administration takes office and bold new policies face lawsuits. On the bench and in opinions, Alito has been markedly irritated in recent years, even as his positions on the law have largely prevailed. His mood has helped fuel speculation over his possible retirement with a new Republican president in office to appoint his successor. Still, 74 is relatively young for a justice to leave the bench. And Alito remains engaged in the courtroom Q-and-A, unlike some justices as they neared retirement, including Anthony Kennedy as he came close to his 2018 departure. More than other justices on their respective sides, conservative Alito and liberal Kagan are sharp-tongued strategic questioners. They are both keenly aware of which other justices might be in play – open to persuasion – during arguments in a case. They come to the courtroom armed and ready to expose the weaknesses of positions voiced at the lectern by opposing lawyers.