"So far this term, the liberal justice has crossed ideological lines at least three times to join the Supreme Court’s conservatives. Most recently, on Thursday, Kagan authored the majority opinion in Lucia v. SEC, a huge case that threatens to erode the political independence of multiple federal agencies. Tearing down the 'administrative state' is supposed to be Justice Neil Gorsuch’s pet project. In Lucia, though, it was Kagan who took the lead in undermining the civil service, authoring an opinion that prompted a sharp dissent by Justice Sonia Sotomayor, who accused her colleague of making legal and factual errors. Why is Kagan playing nice with the conservatives this term? What, put bluntly, is in it for her?... It’s possible... that these defections are tactical maneuvers—efforts to build a moderate coalition to keep the court from veering rapidly to the right. Kagan isn’t losing the battle to win the war. She’s wrestling the court’s far-right justices to a draw in order to forestall disaster...."
That's Mark Joseph Stern at Slate.
June 22, 2018
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Maybe Kagan is just doing her job and judging each case on it merit.
Slate - looool.
Spare me the reefer madness prose, Mr. Stern.
Or, if we're playing with rank speculation here, maybe the Left is getting Soutered.
Nah. Never mind. Couldn't happen.
I guess in Stern's world, all women think the same.
"Why is Kagan playing nice with the conservatives this term?" It probably would be too much to suggest that she's begun to take her oath to "this Constitution"* more seriously.
*That phrase "this Constitution" is used 11 times in the 1787 original, meaning of course the written one, not the one containing the invisible ink readable only by leftist judges.
Sounds like Stern is getting all wee wee'd up. The Left doesn't take losses gladly.
It may be that she has the capacity for independent thought.
#FakeNews
Writing to become the future a Chief Justice?
#BlameKagan.
I'm not sure what Stern is blaming her for, and I'm not going to give his article a click.
Judicial Watch Obtains IRS Documents Revealing McCain’s Subcommittee Staff Director Urged IRS to Engage in “Financially Ruinous” Targeting
It was a bipartisan effort. Then there was unmasking/doxing, spying, bullying/intimidation, SWATting, Obamacare (or monopolistic progressions), etc. There is good reason to "erode the political independence of multiple federal agencies" in order to mitigate their potential to run amuck. Under normal conditions this happens transparently with competing interests.
Yeah, yesterday I posted on Twitter: "Strange new respect" for Kagan? :-)
I think that what's happening with Kagan is that she's taking Donald Trump's election as President to heart, and deciding that you actually do have to hold the government to standards.
I also think that Mark Joseph is an ignorant idiot. Or else he hopes all his readers are.
an opinion that prompted a sharp dissent by Justice Sonia Sotomayor, who accused her colleague of making legal and factual errors
As opposed to a mild dissent that praises the colleague for getting all the legal and factual errors correct?
Often there are principles that should be conserved, while sometimes there is a need for a divergence, or, in a limited fashion, a perturbation.
Justice Sonia Sotomayor, who continues to demonstrate why AA is a good thing. /s
Oh, the humanity.
an opinion that prompted a sharp dissent by Justice Sonia Sotomayor, who accused her colleague of making legal and factual errors
What were the errors?
Or perhaps, unlike Ginsburg and Sotomayor, Kagan actually looks at the law? It couldn't be that, now could it?
”What is Justice Elena Kagan doing?"
Her duty?
Too many political commentators look at the Supreme Court as if it wasn't an interpreter of law, but a legislative branch unto itself.
True, their own political leanings do sway them on what the underlying constitutional laws mean, but there's a limit to that. Once on the court, they don't need to pander to a base, which helps with the outside influences.
Kagan was sold to us as a jurist capable of reaching non-ideological decisions, but it's still a shock to see it in practice.
A message to Kagan to straighten the fuck up or lose all your friends.
Kagan is trying to become the next Kennedy...unfortunately for her, she is likely to wind up as part of a 2-7 minority instead.
Prediction 6/22/18:
Trump leaves the court with a 7-2 originalist majority. The next Democratic president starts talking about packing the court again.
I seem to recall, many years ago, here at Althouse one of the commenters said this about Kagan.
That he knew her, or worked with her, or something along those along those lines and that she wouldn't judge like Obama thought she would. But instead, would interpret the law.
Anyone remember who that was?
Seems like they were right.
How dare she not march in lock-step with the leftist POV?
I suppose tomorrow there will be a similar analysis on the right regarding the Chief's opinion in Carpenter.
She can see the future, just as several justices can. When this or the next generation dies off they will not be replaced. Future governance is “application programing interfaces” which will be renamed “governance” interoperation interfaces. Where everything is services and data replicated all throughout the cloud, eventually debugged and self-healing. And phone apps, in the best anti-fragile and self-extending way when plugged into another edge, esp. now that trade unions need no longer be geographical, because one more ton shipped over water is free. Where AI becomes the new “code of Hammurabi” do no harm, do unto others as you would allow others to do to you is learned by AI by observation. And IA accelerated arbitration can meet business, civil and criminal needs beyond an agreement of the individual to be bound by same. States may be arbitrary collections of individuals, again as identified by AI. If more is needed negotiate interstate compacts to avoid impacting anyone without a vote in a region (a state);Freedom is the right of all adults, as is the right to revolt and give non-adult leaders their Ceausescu moment. Which ends invasions of all kinds, including those by children. Given compatible rules and expectation of adult behavior, there’s no reason for everyone’s quality of life not to be equal, if dictators, non-capitalist Roaders can meet Ceausescu’s end if they don’t deliver the good life. Since we all (will be) can be equal in terms of wealth and the ultimate resource, which is an educated intellect applied to a hard problem, as directed by the market or fiat, rewarded for merit, intellect and judgement, and product delivered the sum of which divided by the cost of mobile power is wealth and national power and influence. Adults will understand what “I really don’t and can’t care, why should you”?, means. You must launch and be responsible for yourself as we enter the era of “make money not war.”
Kagan has seen the future. Governance declines to replicable parts, software and phone apps. Everything else is left to rust and create museums out of. It’ll take 100 years for the last remaining generation who used to know how to turn the crank to start an old-fashioned government to die, we may even pay them to leave like the family farm. They cost too much to operate. Like old fashioned hamburger flipping. No need for federal law. All crime happens somewhere. Let them deal with it. Need more, use interstate compacts. Draw a thread back from every decision to a participating congress critter and provide that data at every yearly election. Joe voted to outlaw freedom of speech on Facebook. Etc. No need for Federal law or Federal regulation, all crime happens somewhere, let them deal with it. AI also means no need for precedence as the AI is continually adapting. The judicial system is recreated for the digital age. Exceeding Judge Posner’s goal of Reforming the Federal Judiciary. Well worth reading.
Liberal spinning.
I always thought Kagan had the intellect to be persuaded by a good argument.
Good for her. If she’s playing the long game while holding on to her principles, she’s a pretty talented and shrewd.
So when a so-called conservative justice "crosses over" its him or her finally (if maybe only temporarily) seeing the light, but when a so-called liberal justice "crosses over" its some strategery or 12 dimensional chess because shes so f-ing smart? Crap.
Maybe they don't rule in lock step like the media would like to believe. Isn't it traditionally something like 50% - 60% of the cases are 9-0. Too much focus on the 5-4 votes.
And the idea of Sotomayor schooling Kagan on anything is hilarious. Sotomayor couldn't hold Kagan's Yoni much less her briefcase.
Didn't Scalia comment, after Sotomayor had been appointed and the next opening arose, "I hope the president sends us someone smart like Elena Kagan"?
Made me think Scalia didn't much care for the IQ of the "wise latina"....
"moderate" doesn't mean what I think it means
Remember, all these justices are very smart by conventional standards (notwithstanding retired Judge Posner's low opinion of the talents of most of them). The last time a lawyer of ordinary intelligence was nominated (poor Miers), the left and right both pounced. (Wrongly so in my view. She could have hired clerks to help her with her writing, just the rest.and kept quiet at argument).
I'm more curious what is being given up to prevent 5-4 decisions that lead to these more narrow, "we'll see this issue likely again," decisions. It is interesting though that the "conservative" opinions are seen as just temporary measures. I assure you that if these were "liberal" opinions, they'd "be the law" and as ever permanent as Roe v Wade is viewed.
Perhaps the 'wise latina' is doing her job: evaluating the case according to the law, rather than choosing her opinion so that the outcome hews to the one desired by liberal left.
-sw
I like how Stern just asserts that a woman can't be doing those things because ... she thinks they were the right thing?
The second she's off his approved reservation of outcomes, she can't be authentically meaning whatever she does.
Patriarchy!!!
(I'm mostly kidding, but ... well...)
Hold on, which one is the latina? My comment is in reference to Kagan.
-sw
Pretty good article for Slate, and good timing with the Carpenter 5-4 decision.
Roberts, Ginsburg, Breyer, Sotomayer and Kagan on same side.
I was surprised some of the other conservatives didn't join. Will have to read the dissents.
How long before the SJWs come after her in a Mexican restaurant?
Maybe Kagan is trying to, on occasion, rule based on the law rather than ideology? I know how that would upset liberal who are used to "their" SCOTUS judges showing no such initiative on important cases, but maybe Kagan is old school enough to think she was appointed to exercise her legal judgment and not merely take orders from Linda Greenhouse et al.
Could be?
Kagan should go back to organizing softball games.
"...the court’s far-right justices..."
Question: has there ever been a far-left justice? Has there ever been a far-left politician? Not according to the press, or pretty much anyone who ever comments on such things.
Anyone that thinks that Elena Kagan is a knee-jerk lefty has never met her (the knee jerk lefty is Sotomayor). I sat next to her at a dinner years ago when she was at Chicago. Kagan is a slightly left version of our hostess, analytical, open-minded, and willing to take serious questions seriously. She was also a great dinner companion.
"She’s wrestling the court’s far-right justices to a draw in order to forestall disaster...."
Notice how the NewSpeak definition of far-right is constantly moving leftward to the point that any political or social stance to the 1/nth degree rightish of oligarchical collectivism is now far-right.
The disaster Stern, and supposedly Justice Kagan, dread is a return of this country to something like democracy.
Inga: "Good for her. If she’s playing the long game while holding on to her principles, she’s a pretty talented and shrewd."
LOL
Oh, I would love to hear what you think the "long game" for Kagan would be in apparently your hilarious mind reading mode.
Too funny.
Kagan is very smart and an independent thinker. Without knowing her better, I'd be loath to even attempt to analyse her motives, but I sincerely doubt she has a long term lefty strategy. IIRC, her honors thesis at Princeton blamed the Communists for ruining the labor movement in the 30's by using it for their own political goals. There were plenty of old labor types who survived that fight and absolutely despised the Communists. Which is to say, I suspect she has a pretty realistic take on the Left and their ways.
Let's not forget, for years Justice Scalia had friendly discussions with her over problems with her legal philosophy. They became a very good friends; he even took her to his favorite a gun range.
I know it is hard for those on the left to fathom, but perhaps Kagan is upholding the law rather than inventing it.
Whenever her name is mentioned, I hear it as Kagel.
It's almost inexplicable when a progressive judge follows the law. Isn't it?
a huge case that threatens to erode the political independence of multiple federal agencies.
How precious.
If Kennedy retires and Father Time retires RBG, any long term plans for Leftists on the Court would be moot.
Breyer is 78 and would need to make it another 6 years if Trump is re-elected.
Sotomayor may get really comfortable writing dissents.
Kagan has always seemed the purest thinker and Sotamayer the least. No surprises here.
Odd, when a supposedly conservative Justice suddenly becomes a deranged progressive ideologue, the Left calls it "growth" or "evolving" or "OK, we won't publish the pictures with the dead hooker and the pony."
When a prog Justice does something that makes sense to a conservative, it must be either a mistake or a strategic effort to support progressivism, because it is unthinkable that the US history, Constitution, laws and society could possibly have a correct conservative idea, statement, regulation, or law, at least according to the Left.
you all act like this is news; it's the same old same old.
Everybody knows that, after a justice moves to DC; they all naturally get more and more conservative. nothing to see here folks; move along!
I am a big fan of 'And'.
Kagan may not want to become a ridiculous, calcified Lefty caricature that Ol' Giddy Ginsburg has become. Anything Giddy says is very likely to be taken as opinion first, law only as it helps the opinion. She has discredited herself to half of the nation and Kagan doesn't necessarily want to buy into that.
Ergo, Kagan MAY be 'selling her vote' to earn a bit of credibility and comity for when SHE wants something. Possible. I bet there is a lot of horse trading in the SC about what cases they actually decide to see and if Kagan gives nothing, she gets nothing.
Kagan may actually be ruling according to the law. This is a shock to Liberals and Lawyers alike, but I can't discount the possibility, as crazy as that sounds to me.
Kagan knows she was probably sold to the Left as 'a reliable Lefty vote' by Obama. Well, no woman likes to be taken for granted (Except Ol Giddy but she is happy to have any attention whatsoever). This may be a bit of a middle finger to a Left that is increasingly going insane and a shot across their ideological bow. "You guys can't get any more crazy or you'll break the courts...so sit down and SHUT UP." (this has as much credence as Inga's wild theory that Melania wants her husband jailed and wears a jacket to prove it)
My cynical side also wonders if Ms. Kagan sees exactly which way the wind is blowing. Ol Giddy keeps passing out mid discussion, Sotomayor is a simp, Kennedy won't last forever. She can join the winning side or the losing side...and she KNOWS Trump is going to be able to replace Ol Giddy. So does she want the uncomfortable seat of '3 to 6' or does she ant to be in the comfortable '7 to 2'.
Frankly, I think that a lot of these jurists (save Ol Giddy) are getting a bit vexed at Hawaiian judges forcing them to smack them down for egregious violations of their power.
The Left has gone Insane and Kagan is still not senile enough to miss it.
That was then, this is now. The strings of lots of Clinton era sychophants are cut now. She is the New Kim Jong Kagan.
That's sort of interesting because EmpiricalSCOTUS made a similar observation:
He figured that perhaps Roberts and Kagan would push toward the center to produce coalitions if, say, Kennedy were to be replaced by a more conservative justice.
"She’s wrestling the court’s far-right justices to a draw in order to forestall disaster...."
Or maybe she's coming to realize that the Administrative State is incompatible with the rule of law, and thinks that the rule of law is preferable. That would be a defection indeed, for a Democrat.
I am pleasantly surprised with Kagan as I was with Breyer's decision in the first Bush v. Gore decision.
That doesn't mean either one is a moderate or a centrist.
I knew Kagan slightly (very, very slightly) in the early 90s, and I suspect that the closest anyone has guessed to the truth (and I stress, I am guessing too) is FIDO. She is a political animal, and doesn't like losing if she can possibly avoid it. The prospect of being on the losing side of an endless string of 5-4/6-3/7-2 decisions is absolutely not appealing to her, and I can easily imagine the woman I knew 25 years ago (who knows, she could have changed...) giving up just about anything to prevent that from happening. She doesn't have any really deep beliefs (that I am sure of), only positions, so seeing her move away from those to embrace a new majority (and gain influence or at least status while doing so) is entirely plausible.
Should be fun to watch, almost as much fun as watching the Ingas of the world melt down while it happens...
It's simple.
Rufus Peckham wrote the Lochner decision that is so reviled by so many today. Since he left, his seat has been under a curse where its holders either have short tenures or disappoint the people who appointed them.
His successor Horace Lurton died after just four years. James McReynolds was appointed by the Progressive Democrat Woodrow Wilson, and was a leading force for defending laissez-faire economic theory. James F. Byrnes held the seat for only fifteen months before being pulled into a different job during World War II. Wiley Rutlidge died early, at age 55, in his sixth year on the court. Sherman Minton was an activist New Dealer senator who, upon appointment to the Court by Truman, racked up a record as a conservative jurist. The Eisenhower Administration appointed Brennan expecting someone conservative, especially on law-and-order issues. The Bush-41 Administration expected Souter to be a conservative vote. Now the holder is Kagan, appointed to the seat by the Obama Administration.
I think the Federalist were more "her people" than she let on.
So the Court decides cases along the justices ideological affiliations not as the law demands.
Conservatives who consider voting the other party against Trump, take note: don't be stupid.
Is Stern playing Supreme Court baseball, three strikes and you're out of the Washington Elite League? If the justices have a functioning intellect, they'll all at least occasionally end up crossing ideological lines, no side is right all the time unless infallibility is now a doctrine of political movements.
Three decisions aren't enough to notice a pattern yet. That said, it would be deeply ironic if Obama, a man of the left who may have thought of the Kagan pick as trying to correct a diversity problem on the Court, ended up being the first Democrat president in forever to nominate a justice who started growing in office the "wrong way".
>a huge case that threatens to erode the political independence of multiple federal agencies.
How precious.
I get why they got rid of the spoils system, but if the last year has taught us anything it's that federal agencies are far too independent of the voters. Somehow these people have the idea they represent a political power center in its own right. But they're not power brokers - they're employees.
Back when Garland was going to come onto the court and overturn everything in a series of 5-4 decisions, I wondered if Kagan might be the wildcard in that plan.
When you think about it, there's not much incentive for a Justice to join a voting bloc. You've suddenly reached the apex of your career. You can't be promoted, can't be fired, and it looks bad to resign when you're still capable of carrying out the duties. So now you're going to just hang around and let Breyer and Ginsberg cast your vote, too? That doesn't seem very appealing to the kind of overachiever who tends to be considered for those jobs.
That was my problem with the Meiers nomination -- I was worried that taking someone who had no chance of getting onto the court in her own right might turn into a "just happy to be here" bloc voter or a "strange new respect" bloc voter the other way.
Also, wasn't administrative law Kagan's area of specialty?
Kagan's 2001 article "Presidential Administration," published in the Harvard Law Review, was named the year's top scholarly article by the American Bar Association's Section on Administrative Law and Regulatory Practice. Declaring an "era of presidential administration," the paper examines how the three previous presidents exercised increasingly direct authority over federal agencies; she argues that in this way, Bill Clinton "“ unlike his de-regulatory predecessors "“ advanced his own progressive and pro-regulatory political agenda.
(from http://www.scotusblog.com/2010/05/9750-words-on-elena-kagan/)
Maybe we shouldn't be surprised that a Justice with a professional interest in a poorly developed area of law feels entitled to reach her own conclusions.
Never forget - Scalia had respect for Kagan, and went so far as to hope she would be nominated by Obama and lobbied David Axlerod to this end:
https://www.cnn.com/2016/02/14/opinions/david-axelrod-surprise-request-from-justice-scalia/index.html
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