Justice Kagan Fractures the Supreme Court’s Liberal Bloc — and Deepens Justice Jackson’s Isolation

The willingness of Justice Elena Kagan to join with the Supreme Court’s conservative majority is deepening the isolation of her liberal fellow travelers — Justices Sonia Sotomayor and Ketanji Brown Jackson. Justice Kagan, named to the court by President Obama, twice in the last week eschewed a posture of dissent.Justice Kagan concurred in Thursday’s order allowing the Trump administration to deport eight migrants to South Sudan, though she contended that she would have found differently on the underlying merits. The other liberals castigated the court’s majority. Justice Sotomayor called the decision “lawless” and “indefensible.”The Upper West Side native and former dean of Harvard Law School and solicitor general sided with the court’s six conservatives in four cases last term, all of which were decided by a seven-to-two margin. Earlier this week, eight of the justices — all save Justice Jackson — agreed that President Trump could downsize the federal workforce, notwithstanding lower court orders freezing those plans. Justice Jackson accused her colleagues — who, at least in this case, included Justice Kagan — of “demonstrated enthusiasm for greenlighting this President’s legally dubious actions in an emergency posture.” In one case in which Justice Kagan joined the conservatives, Diamond Alternative Energy LLC v. Environmental Protection Agency, Justice Jackson wrote in dissent that the case “gives fodder to the unfortunate perception that moneyed interests enjoy an easier road to relief in this court than ordinary citizens.”In another case in which Justice Jackson was in dissent and Justice Kagan in the majority, Stanley v. City of Stanford, the court’s junior justice called the ruling reached by the majority “narrow-minded” and “stingy” for narrowing access to the Americans With Disabilities Act. While Justice Sotomayor joined Justice Jackson for some of her dissent, she declined to endorse its most heated passage. Justice Jackson wrote that she “could not abide” the decision.Justice Kagan, though, agreed with the majority opinion, written by Justice Neil Gorsuch, that this court “has long recognized that the textual limitations upon a law’s scope must be understood as no less a part of its purpose than its substantive authorizations.” That puts her closer to the courts’ conservatives in respect of textual interpretation. In 2015, she exclaimed “we’re all textualists now,” though she has since walked back that declaration.Data collected by ScotusBlog disclose that Justice Kagan was in the majority in 83 percent of all cases from the term that just ended, though that number drops to 70 percent if only non-unanimous decisions are surveyed. That means that Justice Kagan was more often in the majority than not only her fellow liberals but also compared to Justices Clarence Thomas, Samuel Alito, and Gorsuch. She has her finger on the court’s center of gravity. Justice Kagan still aligns more frequently with the liberals than the conservatives, especially in closely decided cases. This term, she dissented with Justices Jackson and Sotomayor in cases involving nationwide injunctions, state bans on medical treatment for transgender youth, and on religious liberty cases, to name just a few.One comparison for Justice Kagan’s position on the court could be that of Justice Barrett, who was appointed by President Trump but has occasionally ruled against the administration — most notably on the use of the 1798 Alien Enemies Act to deport migrants and on a freeze in federal funding. Those deviations precipitated the wrath of quarters of the MAGA legal world, as did an apparently frosty encounter between the president and the justice. Justice Barrett, though, authored the majority opinion in Trump v. CASA, the nationwide injunction case. All six conservatives signed on to her broadside against the dissent, a majority opinion that declares, “We will not dwell on Justice Jackson’s argument. … We observe only this: Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.” Justice Jackson warned that “executive power will become completely uncontainable, and our beloved constitutional Republic will be no more.”Justice Kagan, a rare justice who ascended to the court without any prior judicial experience, is no stranger to putting some distance between herself and the high court’s liberal bloc. In an intellectual property case from 2023, Andy Warhol Foundation for the Visual Arts v. Goldsmith, she joined the chief justice in dissent against a majority opinion written by Justice Sotomayor.That justice accused Justice Kagan of being more interested in “tracing the history of Renaissance painting” than “stating the law.” Justice Sotomayor added, in a dig at her erudite colleague, “‘The Lives of the Artists’ undoubtedly makes for livelier reading than the United States Code or the United States Reports, but as a court, we do not have that luxury.”

Justice Kagan Fractures the Supreme Court’s Liberal Bloc — and Deepens Justice Jackson’s Isolation

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