We don’t Have a Roberts Court. We Have a Kagan Court.
A principled, moderate, and intellectual jurist in a time we need the three qualities the most.
Harvard Law Professor Mark Tushnet predicted that Americans would one day find themselves “talking about a Court formally led by Chief Justice Roberts … but led intellectually by Justice Kagan.” After a decade on the Supreme Court, Kagan has met that expectation. Kagan has shown an indelible fidelity to the text while also adopting a less strict interpretation of the Constitution which differs from, say, that of Justice Thomas.
Beyond being the intellectual center of the court, Kagan also acts as the bridge between the ever-splitting factions of “liberal” and “conservative” justices. To dismiss claims about her animosity towards the Second Amendment, Justice Kagan surprised Republicans and Democrats alike when she went on a hunting trip with late Justice Antonin Scalia in 2013.
Another sign of her judicial temperament lies within her rulings. More than anyone else from the liberal wing, Kagan is unafraid to join the conservatives when she believes the law requires her to do so. Despite that leading to rulings with which I disdain the material outcome, I am confident her integrity has improved the judiciary. When Kagan took the Oath of Office, she was acutely aware the role of a judge is not to answer the normative question of what the law ought to be, but only the positive question of what the law is.
Just because Kagan is a relative centrist does not mean she is willing to let the majority trample her when there is a schism. Quite the opposite. You can tell a Kagan opinion when you read one.
Nowhere is Kagan’s shrewd intelligence more observable than in the gerrymandering case of Rucho v. Common Cause. You will not have to get past the opening paragraph of the dissent to be struck by the impassioned language from a usually stoic jurist:
“For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.”
Kagan continues later:
“So the only way to understand the majority’s opinion is as follows: In the face of grievous harm to democratic governance and flagrant infringements on individuals’ rights — in the face of escalating partisan manipulation whose compatibility with this Nation’s values and law no one defends — the majority declines to provide any remedy. For the first time in this Nation’s history, the majority declares that it can do nothing about an acknowledged constitutional violation because it has searched high and low and cannot find a workable legal standard to apply.”
Just as sentimental as her introduction is the conclusion of this 32-page dissent. For five decades, the Supreme Court maintained a tradition of concluding a dissenting opinion with the now-familiar phrase “I respectfully dissent.” When a justice feels particularly zealous about a wrongly decided case, they sometimes omit the “respectfully” (as did Ginsburg in Bush v. Gore and Scalia in King v. Burwell). On rarer occasions, justices add their flourish. Late Justice Stevens concluded the Citizens United decision with a powerful “I emphatically dissent.”
It was thus an act of defiance when Kagan induced neither anger nor acquiescence in her dissent. She ended off on “with respect but deep sadness, I dissent.” There was no apter sign-off to communicate an incandescent sincerity that the majority erred. As powerful as the writing, her oral delivery only added to this sorrow. As she announced her dissent from the bench, you could hear her voice trembling as she announced “With respect, but deep sadness, Justices Ginsburg, Breyer, Sotomayor, and I dissent.”
So long have we been used to Scalia’s acidic quips and Souter’s polite reticence that we have been unprepared for a usually hidden emotion on the Supreme Court: melancholy.
With respect and deep admiration, I am confident Justice Kagan will remain a principled and astute jurist.