The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
After Justice Scalia died, I wrote the Foreword for the NYU Journal of Law & Liberty. The piece was titled, fittingly, SCOTUS after Scalia. In that essay, I criticized Chief Justice Roberts's so-called "long game":
The institutional theory views the Court as something like a checkbook: the Court can take a big withdrawal once in a while, so long it makes regular deposits. Indeed, Roberts has adopted such a fiduciary approach to judging. Back in 2007, he viewed the Court's three-decade-long pattern of divisive 5-4 decisions as "eroding, to some extent, the capital that [Chief Justice] Marshall built up." Thus, decisions can fall on either side of the ledger: deposits or withdrawals. By depositing "capital" in the narrow decisions—such as WRTL v. FEC, NAMUDNO v. Holder, NFIB v. Sebelius, and King v. Burwell—the Court can withdraw that "capital" in the broad decisions like Citizens United v. FEC, Shelby County v. Holder, and cases yet to come. Like the myopic "long game," the checkbook approach to judging is premised on an unrealistic understanding of how the Court perceives popular opinion.
Over the years, I have returned time and again to the flawed "checkbook approach to judging."
Today, I read Footnote 8 of Justice Kagan's Edwards v. Vannoy dissent. She used a very similar metaphor to attack Justice Kavanaugh's majority opinion. Kagan wrote:
No one gets to bank capital for future cases; no one's past decisions insulate them from criticism. The focus always is, or should be, getting the case before us right.
Justice Kagan and I viewed the Kavanaugh (and Roberts) approach to judging in nearly identical terms.
Last month, I wrote a post titled Conservative Justices Do Not Need To Apologize For Making Socially-Conservative Rulings. I criticized Justice Kavanaugh's incessant virtue-signaling:
This sort of hand-wringing is, unfortunately, a common feature of Justice Kavanaugh's jurisprudence. In case after case where he reaches a socially-conservative rule, he apologizes to progressives. . . .
This pseudo-empathy serves no purpose. Make your decision and own it.
Earlier in Footnote 8, Justice Kagan viewed Justice Kavanaugh's jurisprudence of equipoise in a similar jaundiced light. She wrote:
[Justice Kavanaugh's majority opinion] treats judging as scorekeeping—and more, as scorekeeping about how much our decisions, or the aggregate of them, benefit a particular kind of party. I see the matter differently. Judges should take cases one at a time, and do their best in each to apply the relevant legal rules. And when judges err, others should point out where they went astray.
Sounds familiar? And don't take my word for it. Mark Joseph Stern of Slate wrote that Kagan "echoes" me. Me!?
The conservative Josh Blackman has condemned Kavanaugh's habit as "virtue signaling." While she comes at it from a very different perspective than Blackman, Kagan's dissent in Edwards echoes this allegation. It seems that, in her view, Kavanaugh is trying to "bank capital" by flaunting his empathy, as if he can mitigate the unjust effects of his most conservative opinions. His deep concern for the losing party should offset the actual ramifications of his actions. When he supports a liberal outcome, even better: He can defend himself against future charges of callousness by pointing to his past votes. In doing so, Kavanaugh seeks to "insulate" himself from criticism when he writes a decision like Edwards, which will keep people locked up on the basis of "no verdict at all."
I agree entirely with Justice Kagan. "Well, no, scratch that." Maybe, she agrees entirely with me. Whatever. The direction of agreement is irrelevant. Consistently, I view issues in the same fashion that Kagan does, but in reverse. We seldom reach the same conclusion, but our thought processes are in-sync. Yet, I seldom see issues in the same fashion as Roberts or Kavanaugh, even as we reach the same conclusions. Our thought processes are 180 degrees out of phase. In the span of a single footnote, Justice Kagan has crystallized my years-long jeremiad against the Chief Justice, and now Justice Kavanaugh.
Chief Justice Roberts plays the "long game" of "scorekeeping" on a macro level. For every X conservative rulings, there should be Y liberal rulings. Some cases benefit the right, and some cases benefit the left. On balance, Roberts reasons, the lemmings will be happy. For years, Justice Kagan was happy to ride the left tail of those decisions, and held her fire on the right tail. No longer.
So far, Justice Kavanaugh has played the long game of "scorekeeping" on a micro level. In a given conservative opinion, he still throws praise to the liberal side. Rule against the Dreamers, but praise them. Rule against the LGTB people, but praise them. And so on. In the past, Justice Kagan has held her fire. But here, Justice Kagan trained her fire on Kavanaugh's superficial approach to judging.
Stern observes that Kagan may be done playing nice with Kavanaugh–and I would add, Roberts:
In his superb profile of Kavanaugh, the Atlantic's McKay Coppins reported that Kagan "launched a quiet charm offensive" to win over the justice after his confirmation. And indeed, until recently, Kagan rarely aimed her sharpest arrows at him. Her tone changed during the election, after Justice Ruth Bader Ginsburg died, when she ruthlessly undermined his error-ridden opinion defending voter suppression. (He later issued a correction.) Kagan's dissent in Edwards confirms that the justice is done trying to nab Kavanaugh's vote by pulling punches. Indefinitely confined to a three-justice minority, Kagan knows her influence is largely limited to dissents. If she cannot bring Kavanaugh around to her side, she might as well show the rest of us the cynicism at the heart of his jurisprudence.
Vanoy may be a preview of a very brutal end-of-the-term. Last year was Blue June. This year, after Kagan is done, may be Black and Blue June.