Jurisprudence

Why Does Elena Kagan Keep Roasting Brett Kavanaugh?

The justice’s latest opinion may be an ominous sign for the Supreme Court’s upcoming blockbusters.

Elena Kagan, Clarence Thomas, and John Roberts in their robes, all posing for the Supreme Court group photo.
Justice Elena Kagan, with Justice Clarence Thomas and Chief Justice John Roberts. Pool/Getty Images

The Supreme Court is quiet. Too quiet. It is almost mid-June, and the court has yet to release any blockbuster decisions. What’s going on?

The simple answer is also the obvious one: These cases have sharply divided the justices, who are still circulating majority opinions, concurrences, and dissents between chambers, sniping at each other in acid footnotes that belie their public claims of collegiality, civility, and mutual respect. That’s nothing new; tempers frequently flare as the court completes its work for the term (usually by late June). This anger often boils over into smaller decisions that don’t grab headlines, but provide clues of what’s coming down the pike. On Thursday, the Supreme Court released such a decision. And while the outcome is progressive, the opinions themselves hint that the liberal justices are bracing for a wipeout in the coming weeks.

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Thursday’s decision, Borden v. United States, is not the kind of case that usually grabs headlines. It involves yet another dispute about the Armed Career Criminal Act, or ACCA, a federal law that consumes a shocking amount of the Supreme Court’s time. ACCA imposes a 15-year mandatory minimum sentence on people who are found guilty under federal law of illegally possessing a firearm if they were previously convicted of three “violent felonies” under state law. But every state has a different criminal code, and their definitions of a “violent felony” don’t map neatly onto ACCA’s. The law’s “elements clause” defines a “violent felony” as “the use” of “physical force against the person of another.” In Borden, the court had to decide whether a “reckless” offense—as opposed to one committed with criminal intent—falls under this definition.

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Again: This case is not the stuff of breaking news chyrons. But Justice Elena Kagan drew more attention to Borden than it might have otherwise received by relentlessly owning Justice Brett Kavanaugh at every turn. Kagan did not just rebuke Kavanaugh’s dissent; she ridiculed it with the wry incandescence of a stand-up comedian shutting down a heckler.

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While the Borden case came out 5–4, there was no majority opinion; Kagan wrote the plurality opinion for herself and three others, Justices Stephen Breyer, Sonia Sotomayor, and Neil Gorsuch. Justice Clarence Thomas, meanwhile, authored a solo opinion concurring in the judgment. Kavanaugh dissented along with the rest of the conservatives. So the decision was really 4–1–4.

Kagan’s and Thomas’ analyses differed, but they ended up in the same place. Kagan wrote that the phrase “use of force,” when combined with the words “against the person of another,” implies intent: An individual must intend to harm someone else, so mere recklessness doesn’t cut it. Thomas wrote that the phrase “use of force,” on its own, denotes intent, which similarly excludes “reckless” crimes from ACCA’s elements clause. Kavanaugh, in dissent, claimed that both Kagan and Thomas got it wrong, insisting that reckless crimes do qualify. This debate can be illustrated with the real-world example of a fleeing shoplifter who jumped from a balcony and unintentionally landed on a woman, seriously injuring her. To Kagan and Thomas, that crime would not count as a “violent felony” under ACCA because the shoplifter did not intend to hurt her victim—she was reckless, not intentionally violent. To Kavanaugh, it would.

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Kavanaugh attempted to undermine Kagan and Thomas in several ways, all of which failed. First, he decried the fact that their opinions, combined, created a majority to exclude reckless crimes from ACCA’s scope. He was especially irked that Thomas sided against him, even though Thomas dissented from a previous decision striking down a part of ACCA that would have encompassed reckless crimes. In a lengthy footnote, Kavanaugh tried to depict Borden as Potemkin precedent, its facade concealing internal divisions that rob it of coherence.

Kagan, in response, dismissed Kavanaugh’s complaint as “a complicated counting exercise” apparently meant to show “how unfair it is” that his “view has not prevailed here.” She added that “there is nothing particularly unusual about today’s line-up.”

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Later, Kagan mocked Kavanaugh for “reprising (if at higher volume) the government’s flawed argument.” She scorned him for “essentially repeating what the government says, though with a distinctively question-begging quality.” In one brutal passage, Kagan even accused Kavanaugh of engaging in “machinations” by rewriting ACCA to mean what he wanted it to say, adding: “Statutory construction does not work that way: A court does not get to delete inconvenient language and insert convenient language to yield the court’s preferred meaning.”

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At one point, Kagan used an extended metaphor comparing Kavanaugh to an amateur magician who inadvertently revealed his trick to the audience. Kavanaugh, Kagan explained, “is putting the rabbit in the hat” by adding words that do not appear in ACCA. Her kicker: “We must construe the elements clause as it is—without first inserting the word that will (presto!) produce the dissent’s reading.”

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Presto! It’s great writing. (Though I must note that it may be inspired by Justice Antonin Scalia’s joke about the “Supreme Wand,” which was punctuated not with a “Presto!” but a “Poof!”) As satisfying as it may be, however, it feels slightly out of place in an opinion with comparatively low stakes.

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Perhaps Kagan was simply having fun and assumed Kavanaugh could roll with the punches. If so, she miscalculated. Kavanaugh’s dissent contains not an iota of humor. He did not take up Kagan’s invitation to spar, as Chief Justice John Roberts often does. Instead, Kavanaugh seemed offended, almost wounded, by Kagan’s rhetoric. His dissent is interminable—longer than Kagan’s and Thomas’ opinions combined—and whiny. Kavanaugh spilled much ink suggesting that Kagan had imperiled the public by allowing lenient sentences for dangerous criminals. He even used the classic ploy of describing, in graphic detail, brutal assaults that no longer qualify as “violent felonies” under ACCA thanks to Borden.

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“Today’s decision will have significant real-world consequences,” Kavanaugh huffed, asserting that there will be gruesome “human costs” to Kagan’s “erroneous decision.”

Presumably, while she and Kavanaugh were going back-and-forth behind the scenes, Kagan recognized that her colleague had not taken well to her roasting. She could have toned it down, but instead seems to have amped it up. Her opinion in Borden does not evince deep concern for Kavanaugh’s feelings or respect for his intellect. Like Sotomayor, Kagan sounds as if she is done trying to appease Kavanaugh, to woo him over to her side. Indeed, Borden marks the second time in a month that Kagan has taken direct aim at Kavanaugh’s style of judging: In May, she criticized him for treating “judging as scorekeeping—and more, as scorekeeping about how much our decisions, or the aggregate of them, benefit a particular kind of party.” Now she has charged him with acting like a crybaby, regurgitating bad arguments, and warping the words of the law to expand mandatory minimums.

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This tactic does not inspire confidence that Kagan has talked Kavanaugh into finding a middle ground on this term’s blockbusters. Over the next several weeks, the court is due to release opinions in several major cases where Kavanaugh’s vote could make the difference. In Fulton v. Philadelphia, the court could force Philadelphia to fund foster care agencies that refuse to work with same-sex couples. In Brnovich v. DNC, the court could kneecap what remains of the Voting Rights Act, opening the door to even more voter suppression. In Americans for Prosperity v. Bonta, it could give high-dollar donors to political “charities” a constitutional right to conceal their identities from the public, and weaken the constitutional basis for campaign finance disclosure laws.

If Kagan had persuaded Kavanaugh to defect from the conservative bloc on any of these blockbusters, we might expect her to go easy on the justice in an off-the-radar case like Borden. By turning up the heat instead, she may have given us a distressing forecast of the gloomy weeks ahead.

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