The Volokh Conspiracy

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Friends of John and Elena

Surrogates of the once and future Chief Justice are talking to the press.


In November, Ruth Marcus's column opened with this anecdote:

On the final day of oral arguments last term, the chief justice's voice cracked with emotion as he bade farewell to the retiring Justice Stephen G. Breyer. It was a striking moment for the normally buttoned-up John G. Roberts Jr., and one that seemed to signify more than sorrow at the departure of a longtime colleague. It is not far-fetched to imagine that Roberts was mourning the decisive end of his vision of presiding over an institution seen as operating above the partisan fray. "I've lost my only friend on the court," Roberts told someone afterward.

Roberts told someone who told Ruth Marcus, or something like that. My initial reaction was, what about Justice Kavanaugh? Roberts and Kavanaugh vote like two peas in a moderate pod. Yet, apparently, Robert does not consider his fellow Chevy Chaser a friend. Ouch.

Now, we have a column from Josh Gerstein at Politico about Justice Kagan. Her friends are also talking to the press.

In interviews, friends and allies of the 62-year-old justice suggest she is at a major crossroads — mulling whether the breakdown in the broader American political scene has rendered her decadelong effort to find compromise and consensus on the nation's highest court obsolete, while sowing doubts about her future.

The fact that her comments seem to have prompted equally unusual public retorts by some of her conservative colleagues — principally Justice Samuel Alito — only underscored the sense of brewing discontent.

"She's clearly not very happy," said one longtime associate, who like many interviewed for this story asked to speak anonymously due to the sensitivity of the issues involved and due to concern about impact on cases pending at the court.

Many saw her comments as a profound warning that all is not well on the court, both in terms of relations between the justices and in terms of its historic reputation.

"Elena is very intentional and personable," one Kagan associate said when asked about the liberal justice's unusual public criticism of her colleagues. "She tried the other route, right? … She went skeet shooting with Scalia. She traveled with Gorsuch to Iceland … She's tried everything. She was going to be the bridge builder."

In June 2020, Chief Justice Roberts and Justice Kagan were at the top of the world. In virtually every case, Roberts and Kagan were able to reach some compromise to get to five. Really, every compromise went to the left. The dirty secret is that "compromise" always serves the left. Show me a single "compromise" decision that advances conservative jurisprudence. But whatever, Roberts thought he was in charge. I jokingly referred to Kagan as the real Chief Justice.

What a difference two years makes. With Justice Ginsburg's passing, the Chief's fifth vote is no longer needed. And Justice Kagan is done trying to build bridges. No wonder she is "not happy." Kagan joined the Court with the goal of tempering the rightward lurch. Remember Laurence Tribe's infamous letter to President Obama, which said that Kagan, rather than Sotomayor, would be able to build bridges to Justice Kennedy? But now she can only stand by and watch. All those years of carefully discussing stare decisis went out the window in Dobbs.

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