Copyright The Boston Globe
For years, as the court has moved right, Kagan has agonized over whether to be more confrontational, confidants say, and has mostly concluded that to be effective, she must be careful about rocking the boat. But in recent months, Kagan’s liberal colleague, Justice Ketanji Brown Jackson, has started warning the public that the boat is sinking. In one opinion after another, Jackson has accused the right side of the court of favoring “moneyed interests” and of “complicity” that enables “our collective demise.” At oral arguments, she has taken up far more speaking time than her colleagues, even though the court several years ago tucked timers into the justices’ imposing wood table to tally each of their ticking minutes, according to several people familiar with the devices. “I’m not afraid to use my voice,” she said at an event for lawyers in Indianapolis in July, describing her blistering dissents. Along with the senior liberal, Justice Sonia Sotomayor, the two jurists are in what people close to them describe as an existential dilemma over their lack of influence. Badly outnumbered, seated for the long haul of life tenure, Kagan and Jackson in particular are divided on the best approach to jobs in which they are more or less sentenced to fail. Ever since Jackson arrived in 2022, friction has been building: between her and Sotomayor and Kagan, who are more aligned strategically, and between her and the rest of the court, according to more than a dozen associates of the justices, including both liberals and conservatives. They spoke on condition of anonymity, in order to share sensitive details about closely held conversations. The three liberal justices declined to comment. But increasingly, the tensions are spilling out in opinions, including in the most important case of last term. Jackson and Justice Amy Coney Barrett dueled so harshly that some liberal observers feared that Jackson had alienated Barrett, a key swing vote. Like many others across the left in the era of President Trump, the liberal justices are in a generational and philosophical struggle over whether to safeguard institutions from within or protest their decline. But unlike politicians, they are doing so in a sealed world so tradition-bound and decorous that closing an opinion “I dissent” instead of “I respectfully dissent” is considered a dramatic statement. Their differing approaches will now be tested in a term with vast consequences. The court has been granting Trump enormous — but mostly temporary — latitude. Climactic fights over his policies and power are just ahead. Next week, the justices will consider whether he can unilaterally impose tariffs. Kagan’s approach goes like this: Even on a 6-3 court, the Democratic appointees can sometimes strategize their way into narrower rulings, smaller losses, or even outright victory. To do so, the liberals must generally sway the chief justice and Barrett. Admirers of Kagan say she is prudent to show restraint, displaying her frustration only in flashes. Jackson’s outspokenness could risk those votes or further erode faith in a court that may yet stand up to Trump, they say. Jackson, on the other hand, is aiming for an audience beyond the court, speaking to the public and history. Her proponents argue that Kagan is the one taking risks — of missing the moment and lending cover to a court that is weakening democratic norms. As the three justices wrestle with their choices, the debate in liberal legal circles over their strategy is intensifying. “You can try to hold the center together, and assume that people on the other side are acting in good faith, and try to maintain common ground, in the name of preserving the rule of law,” said Daniel Epps, a law professor at Washington University. “Or you can raise the fire alarm.” When Kagan was under consideration for the high court, she had a surprising advocate: Justice Antonin Scalia, a titan of the conservative legal movement. “I hope he sends us someone smart,” he told David Axelrod, then an adviser to President Barack Obama, at a Washington dinner. “I hope he sends us Elena Kagan.” The court Kagan joined in 2010 leaned rightward, but not by much, and she devised a way of operating that sometimes allowed her to win. Kagan became a confidant of the chief justice and so avidly monitored the mood of Justice Anthony Kennedy — a Republican appointee who had become the court’s swing vote — that people who worked with them joked that she knew what he had for breakfast each day. While Justice Stephen Breyer, a fellow liberal also devoted to compromise, was spontaneous, Kagan was tactical. She assessed where to expend capital and what to write off as a lost cause. People who worked with her describe her attitude as: Let’s make this opinion 30 percent better. Between 2020 and 2022, the liberals lost their fourth vote, and the court was remade. Justice Ruth Bader Ginsburg died, Barrett arrived, then Breyer retired. His successor would have to figure out how to do a job that had been sapped of most of its influence. Jackson’s appointment as the first Black female justice was “a refutation of past ignominies, a long-anticipated and highly celebrated national achievement,” she wrote in her memoir. But inside the court, she was the junior justice. She had been a judge in Washington for many years, but most were as a solo act, presiding over a district court that was hers alone. Now, in private Supreme Court conference meetings, she tended to go on longer than the other justices, sometimes reading from statements she had prepared in advance. Some of the other justices became annoyed by how much airtime she consumed there and during oral arguments, according to both liberals and conservatives who heard the complaints. In the public sessions, she has racked up time because “she knows she can’t persuade her colleagues,” said Melissa Murray, a New York University law professor and podcast host. Instead, Murray said Jackson’s goal is to do “public education from the bench,” reaching people through livestreamed arguments. As Jackson settled in, Sotomayor and Kagan were drawing closer to one another, according to numerous people who know them both, and also forming ties with Barrett, whose vote they desperately needed. But Jackson and Barrett appeared to chafe against one another. As the conservative majority awarded Trump one win after another this year, the liberal split widened and became more public. The decisions, spurred by more than 20 emergency applications, have been technically temporary — in place while challenges proceeded through lower courts — but have had far-reaching impacts. The liberal justices have been writing ringing objections, but in different tones. Sotomayor has been raising alarms but has been devoted to maintaining bonds with conservative colleagues, those close to her say. Kagan has written a few protests as well, particularly of the court’s use of the emergency docket. But in a twist, she voted with her conservative colleagues during last term’s nonemergency cases more than the other two liberals and more frequently than she had in the prior term. She also won a rare victory, drawing three conservative votes in a case that helped protect the power of federal agencies. Meanwhile, Jackson has aimed straight at the right side of the court, comparing the court’s decisions to Calvinball, a fictional game from a comic strip. “Calvinball has only one rule: There are no fixed rules,” she wrote. “We seem to have two: that one, and this administration always wins.” All of this came to a head in one case in June. In Trump v. Casa, the court limited the power of lower court judges to issue nationwide rulings, in one stroke diminishing the power of the judiciary to challenge Trump. Barrett wrote the 6-3 majority opinion. Sotomayor pushed back with a full-throated dissent: “The court’s decision is nothing less than an open invitation for the government to bypass the Constitution,” she wrote. Jackson joined that opinion. But she added an even more dire solo dissent. “Eventually, executive power will become completely uncontainable, and our beloved constitutional Republic will be no more,” she wrote, and signed off “with deep disillusionment, I dissent.” It sounded like a message: I am losing faith in the Supreme Court. Barrett hit back hard, calling her argument “at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself.” The liberal justices feel stuck, people close to them say. All three see Trump as a threat to the constitutional order, yet no approach — diplomacy or confrontation — has persuaded the conservative center of the court to regard him that way. As the court approaches the pivotal Trump questions, Kagan is the one to watch, scholars and people close to her say. Because of her discipline, her words have special potential to critique the court, they said. Before she deleted the most vehement passages from her student loan decision, she circulated them to other justices — a warning, perhaps, of how scathing she could choose to be. Now, after many years of mulling, she must decide. The problem with waiting to speak frankly is that “over time you normalize what’s going on,” said Pamela Karlan, a professor at Stanford Law School. She said it might be tempting to hoard influence and leverage for a “cataclysmic case.” But by the time that happens, she said, “it may be too late.”
