Everyone Is Mad at Elena Kagan

But there’s a good reason she keeps siding with the conservatives.

Elena Kagan smiling
Supreme Court Associate Justice Elena Kagan participates in a discussion at George Washington University Law School in D.C. on Sept. 13, 2016. Mark Wilson/Getty Images

Justice Elena Kagan shocked the world on Monday when she joined a dissent by Justice Samuel Alito that would’ve made Robert Bork proud. In Ramos v. Louisiana, Alito contested the Supreme Court’s 6–3 decision striking down split verdicts, which allow conviction by a nonunanimous jury. Kagan, a Barack Obama appointee, typically sides with the court’s liberal wing on civil rights and criminal law. Yet here she was, joining a reactionary dissent defending an unjust practice rooted in bigotry. Civil libertarians were understandably disappointed, baffled, angry, skeptical, and saddened.

Kagan’s vote in Ramos really shouldn’t have come as a surprise: The justice crosses ideological lines in divided decisions more frequently than any of her liberal colleagues do. She’s also a pragmatist with a fierce commitment to precedent who will follow her principles even when they lead to an outcome she dislikes. Kagan is no closet conservative. She is playing the long game in two related ways: establishing herself as the court’s fiercest defender of precedent and sacrificing ideological purity in favor of compromise with her conservative colleagues. But that is no guarantee that she will prevail, or that any of her compromises will actually pay off.

It was fairly clear after oral arguments that Kagan would vote to uphold split verdicts—not because she believes they’re constitutional, but because the court has approved them for 48 years. In 1972’s Apodaca v. Oregon, five justices upheld nonunanimous convictions in state court. Before Monday, Louisiana and Oregon relied on that decision in conducting jury trials. Overturning Apodaca will void hundreds, possibly thousands, of convictions and force two states to change their criminal procedures. As Kagan noted during arguments, Apodaca “has been completely clear. States have had every right to rely on this for 50 years.” Maybe, in light of that fact, she said, “it doesn’t matter whether it was wrong because overruling something requires more than just the decision be wrong.”

Kagan has made this point before, in 2015’s Kimble v. Marvel. She wrote the majority opinion refusing to overturn an old patent case, citing the doctrine of stare decisis, or respect for precedent, and including a line to which she has since returned in much bigger cases: “Respecting stare decisis means sticking to some wrong decisions.” Why? Because, as she put it in 2019, “society relies on the idea that law is stable and law is predictable and law won’t change just because particular members of the court are different or change.”

Stare decisis has, historically, been a conservative doctrine, one that seeks preservation of the norm over evolution of the law. But today, conservative judges are chipping away at this principle in an effort to erode progressive precedent and kick-start a conservative judicial revolution. It’s easy to see why: With extremely conservative judges ascendant in state and federal courts, as well as SCOTUS, stare decisis is all that protects important constitutional rights like abortion access, marriage equality, and limitations on the death penalty. The only way liberal judges can protect these rulings is by demanding that their courts stand by past decisions.

This philosophy is why Kagan joined Alito in defending Apodaca: She wants to practice what she preaches. What’s harder to grasp is why she signed on to a portion that condemns the majority for being, in short, woke social justice warriors. Alito trashed his colleagues for acknowledging that both Louisiana and Oregon adopted their split verdict laws in a bigoted effort to dilute “the influence of racial, ethnic, and religious minorities” on juries. He accused the majority of “contributing to the worst current trends” by favoring “ad hominem rhetoric” over “rational and civil discourse.” The justice then suggested that both states had cleansed their laws of bigotry by reenacting them in later years.

At first blush, Kagan’s decision to join Alito’s rant is baffling. After all, she herself has repeatedly called out the unconstitutional bias behind ostensibly unprejudiced laws. But journalist Mike Sacks pointed out a possible explanation here, too. Another major case this term, Espinoza v. Montana, may resolve the constitutionality of so-called Blaine amendments—state constitutional provisions that bar public funding of religious institutions. Montana and 37 other states placed these clauses in their constitutions in the 19th century, and they are now roadblocks for school choice advocates who want states to subsidize religious schools. These advocates assert that Blaine amendments were motivated by anti-Catholic bigotry and are thus a violation of the First Amendment’s free exercise clause. This claim is dubious and heavily contested, but some conservative justices seem to believe it. If they invalidate every Blaine amendment, it will open the floodgates to state funding of religion.

There’s a hitch, though: Most of these states, including Montana, readopted their Blaine amendments more recently—and there’s zero evidence they did so out of anti-Catholic animus. In Ramos, Alito argued that readopting a law for unbiased reasons cleanses it of any unconstitutional taint. And Chief Justice John Roberts joined his opinion as well. As the court continues to deliberate over Espinoza, Kagan can now remind Alito and Roberts of their position in Ramos and try to shame them into sticking to principle.

When the situation calls for it, Kagan can write a scorching dissent calling out hypocrisy. But her usual style is much more conciliatory; more so than any other liberal justice, she’s prepared to make deals with the conservatives and even join them in affirming conservative precedent. Along with Justice Stephen Breyer, Kagan famously made a deal with Roberts to salvage the Affordable Care Act: Breyer and Kagan agreed to make Medicaid expansion voluntary in exchange for the chief justice’s fifth vote upholding the individual mandate. Last term, Kagan also managed to preserve federal agencies’ power by nabbing Roberts’ vote, though she had to weaken that power in the process.

Does this tolerance for horse trading make Kagan a conservative? By most metrics, she is certainly the least liberal of her four Democratic-appointed colleagues: According to Adam Feldman of Empirical SCOTUS, which analyzes Supreme Court statistics, Kagan has voted with the five conservatives in 6–3 decisions more frequently than the other three progressive justices have. This term, for instance, Kagan wrote the opinion in a 6–3 decision allowing states to abolish the insanity defense, over the dissent of her fellow liberals. Over the past few years, she has written or joined split decisions upholding conservative precedents involving congressional power to regulate the states and presidential authority over federal agencies. She has sided with an anti-gay business that discriminated against gay customers. She has repeatedly voted to erode the separation of church and state. And she has voted to expand exemptions from the Freedom of Information Act.

These moves have drawn criticism and suspicion from the left. It is notable, though, that Kagan’s vote was not decisive in any of these decisions. In most cases, Kagan simply assented to precedent that, whatever its merits, is now firmly entrenched in the law. In others—like, for example, the anti-gay discrimination case—she signed on to a compromise that forestalled a much broader conservative rout. There is reason to believe that her strategy is paying off. Roberts often assigns Kagan the majority opinion when she is the only liberal justice to join a 6–3 decision, or when he is the only conservative justice in a 5–4 decision. By doing so, he allows her to write minimalist decisions that alter the law little, if at all. Her opinions tend to be narrow and riveted to precedent. When she writes for the conservatives, she might nudge the law to the right. But if she dissented instead, the conservatives, lacking any moderating force, likely would’ve pushed the law much further rightward.

The strongest critique of Kagan’s strategy is that she is giving up something for nothing, trading away her votes for table scraps. We probably don’t have enough data yet to make that determination either way. Assessing her work in 2019, the New Yorker’s Margaret Talbot concluded that the jury is still out. She’s right, but by the end of this term, we should have a better sense of the final verdict. The justices are poised to rule on a number of hot-button issues, including abortion rights, contraception, religious liberty, LGBTQ discrimination, and Donald Trump’s power to shield his financial records from congressional oversight. If Kagan can hold the line in any one of these cases, or mitigate potential harm by forestalling a 5–4 defeat, her conservative votes may be vindicated. If she fails to prevent a clean sweep of conservative triumphs that fundamentally reshape the law as we know it, she might have some soul searching to do.

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