Supreme Court

Why Didn't Justice Kagan Join Justice Sotomayor's Opinion Respecting Certiorari in National Coalition for Men v. Selective Service System?

Many were surprised that the K-named Justice joining Justice Sotomayor was Justice Kavanaugh instead of Kagan.


On Monday, the Supreme Court denied certiorari in National Coalition for Men v. Selective Service System, an Equal Protection challenge to only requiring men to register for the military draft.

Justice Sonia Sotomayor offered an opinion respecting the denial of certiorari, suggesting the Court's 1981 decision in Rokster v. Goldberg is incompatible with the Court's subsequent Equal Protection jurisprudence on sex-based classifications. Her opinion was joined by Justices Stephen Breyer and Brett Kavanaugh. Josh Blackman commented on Justice Kavanaugh's decision to join Sotomayor's opinion. Yet what explains Justice Kagan's refusal to join? Her absence may be no less conspicuous than Kavanaugh's join.

One possibility is that Justice Kagan did not want to join an opinion implicitly suggesting a Supreme Court decision should be overruled. Although her opinion suggested a willingness to wait for Congress to reconsider the policy of only requiring men to register, "at least for now," the opinion carried an implicit message of disapproval.

In an earlier post this week, Ilya Somin suggested Justice Kagan is almost certainly a fourth vote to overturn Rokster. Ilya may be right, but I am not so sure–and I think it quite unlikely that Kagan would want to signal as much right now.

In multiple recent opinions Justice Kagan has positioned herself as the champion of stare decisis on the Court, taking every opportunity to defend the importance of precedent and shame the Court's moderate conservatives into following the Court's prior cases. Indeed, Justice Kagan has gone out of her way to highlight her willingness to follow precedents with which she disagrees, most recently in Edwards v. Vannoy. The first footnote to Kagan's Edwards opinion reads:

I dissented in Ramos precisely because of its abandonment of stare
decisis. See 590 U. S., at ___−___ (slip op., at 5–9) (ALITO, J., dissenting);
see also Kimble v. Marvel Entertainment, LLC, 576 U. S. 446, 455 (2015)
("Respecting stare decisis means sticking to some wrong decisions"). Now
that Ramos is the law, stare decisis is on its side. I take the decision on
its own terms, and give it all the consequence it deserves.

Given some of the cases the Court has yet to decide this term (most notably Fulton v. City of Philadelphia)–and tests of other landmark precedents on the horizon–Kagan has reason to be thinking about stare decisis. Whatever one thinks of the merits, it would be understandable if Kagan did not want to join an opinion casting shade on a prior Supreme Court opinion, even one with which she might disagree, while urging her colleagues to let (what they see as) erroneously decided cases to stand. After all, the Supreme Court under Chief Justice Roberts has been a "stare decisis court," overturning prior court precedents at a lower rate than its post-War predecessors. Justice Kagan would like to keep it that way.

UPDATE: For a critical take on Justice Kagan's approach to stare decisis, see this recent piece by Illinois Law Dean Vikram David Amar.

NEXT: On the Continuing Relevance of Frank Meyer's Fusionism

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  1. Few soldiers see hand to hand combat. Those that do have horrible leadership that needs to be fired, if not put on trial.

    Women are just as good as men at flying drones, at getting things done in supllies, at intelligence gathering. They are physically inferior, and intellectually inferior at the very extremes (genius). In the mainstream requirement for intelligence, they are equal.

    The stinking lawyer profession, the stupidest people in this country, is just not keeping up with modern combat. It will mostly consist of coding and apps in the future. Even drones will be directed and flown by an app. Tiny drones are exterminating tanks in Lybia for a few hundred dollars each.

    Lawyers need to get the fuck out of here. Get rid of this pestilential vermin. This decision is ridiculous and a disgrace. Lawyers are the stupidest people in this country. Of all the lawyers, the stupidest are Supreme Court Justices. Impeach these dirty traitors taking down our nation. They have cut out half the pool of our warriors. Lucky for them, the draft is irrelevant. If it were, they should be rounded up. This awful decision will make no difference to our military.

    1. Stare decisis is the lawyer hanging on to atavistic, stupidity from the past. It is like saying practice the medicine of the 1981. You would not lose the license. You would be arrested, as a threat to public safety. Or practice the construction of the 1981 or the carmaking, or the farming.

  2. “Respecting stare decisis means sticking to some wrong decisions”

    “It is a maxim among these lawyers that whatever has been done before, may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice, and the general reason of mankind. These, under the name of precedents, they produce as authorities to justify the most iniquitous opinions; and the judges never fail of directing accordingly.”

    /Jonathan Swift, Gulliver’s Travels

  3. What the hell have you been smoking??? Kagan is more than happy to overturn precedent; Obergefell and Bostock are abominations. She will overturn ANY precedent, no longer how established, that fits her far-left sensibilities.

    The idea that she respects prior decisions or “democracy” is a sick joke.

    1. Bostock didn’t overturn any precedent. And Obergefell only overturned one of very little precedential value (Baker).

  4. Mens rights is a far right concept. If a feminist group pushed this kagen would be on board. Only progressive orgs are allowed to make ‘historic changes’

  5. I’ve been told for decades that as a non-uterus bearing American, I cannot offer an opinion on abortion.

    So, why are women justices allowed to judge laws about the draft?

    1. Now that… a great question. 🙂

  6. I think Kagan’s stare decisis at all costs is kinda dumb. I fully understand the reasons for stare decisis in the first place, however …

    if the point of stare decisis is to add stability to the law, and we have 2 prior precedents which clearly contradict, what adds more stability … adding a third case preserving both and adding yet another wrinkle to it, or simply picking the precedent that is most consistent with whatever judicial philosophy is used and scrap the other?

    Furthermore, something I’ve always believed is that strict stare decisis and pragmatism are incompatible judicial philosophies. If you make an opinion based on pragmatist facts on the ground, well … those facts can change! The opinions have to change too then, right?

    You cant have a regime where you can’t change your opinion once decided AND you base it off of information that changes.

    There are plenty of instances where the overruling the precedent creates a more stable and consistent legal regime than not doing so. I’m not talking about controversial cases. But things like Kimble vs. Marvel … a legal regime where contract rules are universal is more predictable than one where there is a random exception for contracts involving patents that, unless you somehow remember this rule from an extremely obscure case, you wouldn’t know about.

    In all, I find Kagans approach very … dumb. There are cases too where, sure, you aren’t overruling supreme court precedent … but you are completely reshaping decades of lower court precedent … thats totally fine? Stare decisis is important … but the reasons why often counsel against stare decisis.

    1. Hand to hand combat, the sole inferiority of females, is so 1981. Lugging 70 lbs packs is also idiotic, today. You lug a one ounce military drone to gather intelligence. Even primitives with no money are destroying tanks with $1000 drones and cheap rockets. Come on, females are now totally equal to males in combat.

      Here is a desperate clinger article.

      1. Tell it to Jessica Lynch and Shoshana Johnson Lori Piestewa. They were just supply clerks

        1. Hi, Doctor. Wasn’t that 20 years ago? Wasn’t that the result of failed Washington leadership and of idiotic tactical mistakes? In that time, hasn’t medicine totally turned over 3 times? Hasn’t war fighting done the same? Perhaps, we should update, as the enemy has. The lawyer profession is a huge anchor on progress that needs to be jettisoned. Crush these idiots and traitors.

    2. Furthermore, something I’ve always believed is that strict stare decisis and pragmatism are incompatible judicial philosophies.

      Shirley that applies to any two judicial philosophies. When they clash, one must give way.

      Of course they can co-exist hierarchically – ie say stare decisis assoluta is tops, and pragmatism is the fall back. When there’s no stare decisis you fall back on pragmatism. When there is some stare decisis, you apply it, however unpragmatic it may be.

      I don’t find Kagan’s stare decisis approach dumb at all. But then I am a cynic. She knows she’s in the minority on the court, she knows that for the most part the decisises to be stare-ied are liberal precedents, so she’s trying to attract the attractable conservatives with a paean to stare decisis, including voting against her instincts when she can bank capital without affecting the result.

      She’s pursuing pragmatism as her ruling judicial philosophy. And sometimes it’s pragmatic to bang the stare decisis drum.

      But following :

      1. the complete overturning of Roe v Wade, Casey etc by the
      “five Catholic conspirators” in Bilderbeech v Kentucky (2022) – Roberts joining Kagan, Breyer and Sotomayor in dissent
      2. Justice Thomas’s early death, and his replacement by Justice Stacey Abrams
      3. CJ Roberts’ resignation in the light of the shocking student blackface photos that cam to light in 2023, and his replacement by Kagan as Chief, and by Justice Toobin as Associate Justice

      when the case of Mazumberley v. Florida comes before the court in 2024, Mazumberley challenging a Florida anti-abortion statute, we need not expect Kagan CJ to die in a ditch defending the Bilderbeech precedent.

    1. I read the linked open letter with interest, but felt it was a little shallow.

      1. Taking the second question first – ie does not the fact that “stare decisis” is a judge made law (of interpretation) , necessarily make it insubstantial, because judges, if they are in the business of making law, can unmake stare decisis any time they like ? This is true of any judge made law, of course. So I agree that stare decisis rests currently on its attractiveness to continuing judicial whim.

      But it need not do so. There is nothing to stop Congress, or State Legislatures, or Constitutional Conventions writing their versions of stare decisis into federal or state law, or into the Constitution, at which point it would be binding on the judges, whatever their whims. Thus the apparently ephemeral nature of stare decisis is not really a comment on stare decisis, it’s a comment on common law generally.

      2. Then there is the practical issue – quis custodiet ipsos custodes ? If the judges are the ones making the decisions, they get to decide what is within, and what is without, the existing precedent. Therefore stare decisis does not bind them at all. True enough, up to a point.
      But most people – even most judges – do not like to be publicly shamed. If there is a stare decisis rule, most judges will want either to give the appearance of staying with it, or to have a good argument up their sleeve as to why it does not apply in this case. The more shamelessness that is required to ignore stare decisis, the more judges will reluctantly adhere to it. A bit. So having the rule is not completely useless. Which, after all, is why Kagan keeps on banging the drum. She aims to blackmail the weaker conservative Justices, with threats of whole bucketfuls of shame, if they stray from the precedents she likes.

      3. Lastly, I feel that the open letter ignores one of the main points in stare decisis’ favor – which is that it is a partial guard against retroactive lawmaking. Judges deciding cases will very often be making new law, by stating that the law means X, when previously what it meant was uncertain. To the extent that it was not clear that the law was X, then those who reasonably assumed it meant something else have been subjected to a dose of retroactive lawmaking. Stare decisis – if honestly applied – helps limit the retroactivity of judicial decisions. Once the judges have decided on X, citizens may rely on the law being X, just as well as if X had been clearly stated in statute.

      1. Rereading that, I feel I may have betrayed a slightly cynical tone. I am rather cynical about judges, but it ought to be said that there are some honest people about, even some honest lawyers (no really) and some of them may make it onto the judicial bench.

        Some people will follow a rule, just because it’s a rule. Not everyone is a cheat. Or at least not all the time.

      2. There is nothing to stop Congress, or State Legislatures, or Constitutional Conventions writing their versions of stare decisis into federal or state law, or into the Constitution, at which point it would be binding on the judges, whatever their whims.

        Separation of powers. Congress can of course write substantive legal propositions into law. But it cannot tell the Supreme Court how to decide a case. (A constitutional convention of course could do so.)

        1. I forbear to mention that the separation of powers is nowhere mentioned in the Constitution, and that the principle is explicitly breached therein – eg the President’s role in legislation, and the Congress’s power to declare war, and grant Letters of Marque. OK I don’t forbear.

          But seeing as Congress has the explicit power to constitute Tribunals inferior to the Supreme Court, it seems a bit odd that there should be an unspoken but ruling principle that Congress may constitute them, but may not tell them their rules of operation – like, say, their jurisdiction, how and when panel decisions rather than a decision of the whole court is permitted, whether their power to grant injunctions is limited to the parties or not.

          May Congress not pass a law defining words for the purposes of all federal statutes (unless a particular statute provides a special definition?) Are judges not bound by such laws so far as statutory interpretation is concerned, or are they entitled to wander off after their own preferred definitions ?

          As for the Supreme Court what meaning do you place on the expression “under such regulations” in the following passage ?

          In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

          Meanwhile, as I understand it – very possibly wrongly – Congress has passed all sorts of laws restricting the President from going about his business as he pleases – laws about administrative procedures, laws about not firing federal employees on a whim, and so on. Why would the separation of powers permit the Congress to tell the President not merely what to do, but in some cases how to go about doing it – but put the courts off limits ?

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