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PHILADELPHIA - Supreme Court reporter Lyle Denniston said he sees a "positive trend" when he analyzes the U.S. Supreme Court under Chief Justice John G. Roberts Jr.: the presence of three women for the first time.
Speaking at a July 6 Supreme Court Term in Review luncheon program at the National Constitution Center here, Denniston said the court's two newest justices - Sonia M. Sotomayor and Elena Kagan - have broken from the tradition of new justices "being seen and not heard" and have taken an active and often aggressive role in oral arguments and court deliberations. They join Justices Ruth Bader Ginsburg and Stephen G. Breyer as members of the court's liberal wing.
"I think it's quite clear that a woman's influence on the substance of jurisprudence is going to make a big difference," Denniston said of the makeup of the Roberts court.
Denniston is the National Constitution Center's advisor on constitutional literacy and has covered the Supreme Court for more than 50 years, most recently for SCOTUSblog.
Sotomayor, seated on the court in 2009, is "very aggressive in discussions," Denniston said. Kagan, seated in 2010, is, despite her "lighthearted," "happy-go-lucky" personality, a very dominant presence on the court and in private court deliberations, Denniston said, despite her complete lack of experience as a judge.
An important question, Denniston said, is how soon Kagan, the former U.S. Solicitor General, will be able to participate in cases involving the federal government. This is especially important, he said, because cases raising very serious issues, including cases involving Guantanamo Bay detainees, are headed toward the high court. With four votes needed to grant certiorari, it's unclear whether Kennedy will deliver that vote if Kagan needs to recuse herself from cases she was formerly involved in, he said.
During a question and answer session, Denniston was asked if Justice Clarence Thomas, who has rarely spoken during oral arguments since joining the court in 1991, was an active participant in closed-door discussions by the court.
"Justice Thomas is the most misunderstood justice in this country," Denniston replied. "He is brilliant. . . . But he does not participate in oral arguments."
Denniston, who praised Thomas' as a "really original thinker" with a warm personality, said the court does not discuss any case before it comes up for oral argument and that the questions asked at oral argument set the tone for future court deliberations.
"If you don't participate in oral argument, you don't set the agenda," he said.
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