More On Kagan

Justice Kagan used a patent case involving a Spiderman toy to not only have some fun with superhero references, but also to defend stare decisis (in that case statutory). The senior justices of the time (minus Scalia) dissented, Alito for Roberts and Thomas. So, Scalia assigned the opinion. 

She talked about it in a recent interview, one chance for her to discuss her views and concerns. It would be interesting to know though my assumption would be that she had some sort of pre-interview discussion with the dean/law professor who interviewed her.  If that is often done with talk shows, I think it would be fairly likely it done in cases like this.

After writing the last entry, I listened to the whole interview. One of my things is that there is often some details that are lost when reading summaries.  It's not going to be possible to "deep dive" everything, so you have to trust the summaries some.  Nonetheless, there is going to be something lost.  There are usually some additional details.

I don't think anything really significant would be added there in this case. It does provide some more detail.  For instance, when asked what she means when she worried about legitimacy, Kagan argued it involved justices not acting like a court. Eric Segall of the constant #notacourt fame thinks the Supreme Court is not a court.  I think he exaggerates.

What does Kagan mean here?  She cited three things:

• Precedent
• Consistency (particularly regarding judicial method)
• Restraint/Judicial Minimalism 

Justice Kagan has been fairly consistent on the precedent front, including when the Supreme Court overruled a case to protect a right to unanimous juries.  Kagan in the interview argues that you should rarely overrule a precedent, particularly noting when a doctrine or case no longer works. This would include something past its time (like old fashioned gender roles).  So, simply saying there is error is not enough.

For instance, some liberals (such as RBG) felt that the Supreme Court should overrule the dual sovereignty rule for double jeopardy. The same basic act should not be open to prosecution by a state and the federal government.  The Supreme Court recently upheld the old rule with only Gorsuch and Ginsburg dissenting (Thomas actually did not, after earlier on suggesting he might).  

I have felt the old rule dubious, but actually am sympathetic to upholding it.*  Also, it rarely actually comes up, especially since the feds have policies to avoid doing it in various cases.  Also, there is specific cases where the feds might have too much of a role in the state prosecution.  So, it doesn't happen too much. 

Kagan did join a 6-3 dissent in a case involving unanimous juries, joining an Alito dissent that had a few dubious comments.  I think she did it for consistency sake, since it was a sympathetic case, especially since there is some evidence that not having unanimous juries have negative results regarding racial discrimination.   In fact, I think she could have concurred on narrow grounds without disrespecting precedent much at all.

(The law actually already changed, leaving ONE state as well as Puerto Rico not having unanimous juries and even the law in the one state -- Oregon -- had dubious roots.)

One case where there might have been a bit of bit was one involving benefits for Puerto Rico, including the lingering effects of the Insular Cases. Nonetheless, the case turned out to  be 8-1, and did not turn on overruling those cases.  So, I'm unsure really where Kagan's respect for precedent really hurt much. It would interest me what she will do regarding the abortion case (Dobbs), which is now precedent. 

As to method, Kagan was not a big fan of originalism. She argued that in application, it seemed rather flexible with time periods, evidence, state of generality, and what exactly is used (original understanding or original practices).  The result is it seems liable to be used for results-oriented jurisprudence. She also argues that the Constitution itself generally are made up of open-ended provisions that by text and design are not logical for that approach.  Originalism is not originalist, maybe?

She is more of a textualist.  A textualist, mind you, is not the same as an originalist though some people define the latter term in such an open-ended way that you might think so. To be clear, not a big fan of that last article.  On that front, she flagged her dissent to the "major questions doctrine" exception to text. And, she cited her dissent in the voting rights case. Since I wrote about that on another blog, I will cite a discussion of this opinion.

Kagan argued the Supreme Court looks bad when it goes too far when it doesn't have to do so.  It looks political instead of a court. She called foul on an excessive use of the "emergency docket" (she called it the "shadow docket" at one point, somewhat embarrassed as if she knew the baggage of the word).  Kagan noted it was understandable to want to intervene in use of single judges using national injunctions. But, even there, she argues that there should be another way to deal with the situation. 

Steve Vladeck (whose book on it is now in pre-order) has written a lot about the shadow docket.  I do think a good case can be made for abuse there, including major policy decisions in inappropriate ways.  As to precedent, there are various cases where red flags can be cited, though again there is the trick that it is unclear how many cases Kagan restrained herself to uphold some conservative decision.

Breyer and Kagan did join some conservative opinions for what people assume are strategic reasons, the most blatant being what amounts to be an expansion of unconstitutional conditions principles in the Affordable Care Act Cases.  So, it's important not to be too cynical here, especially since people over time argued that their strategic returns got to be less and less.  And, off the top of my head, I don't know of any old precedents Kagan refused to go along with of any note.  

The 6-3 Court is doing more to flex its muscles, including both overruling precedent and going further than the cases reasonably warrant.  And, the logic (so to speak) of the conservatives leave something to be desired. Toss in the results are bad, you can see Kagan's concerns.  

Kagan argues that mere popularity of decisions isn't the only factor. That's true enough since some results like defending unpopular speech are right even if people don't like them.  Sure.  The abortion case was unpopular AND had problems that arose from other issues too. The merits was always going to matter, but so did the other stuff, including the reality that the whole thing was stacked against losing side.  

The last thing to think about is what to do in the future. I hope that some time down the road we will have a better Court. How should we deal with the problems of this one?  We will have years of precedent.  Are we stuck with them via stare decisis?  How do we get around it?  Will it take a major political change ala the New Deal? Constitutional amendments? Something else?  Will how the precedents were formed factored in?

Kagan talked about the two judges she clerked for, including a lower court judge who served in each branch of government.  She really didn't talk about her own diverse background (instead of Congress ala Breyer, she had long experience in academia and is the only non-judge to be nominated to SCOTUS since Lewis Powell). But, I think her work as a clerk, two presidential administrations, and academia did provide insights. 

So, what about those three criteria?  I think the current Court is problematic in part for those reasons. It is doing too much without enough justification. The Warren Court did a lot, but the time was right for most of it, and the Court as a whole reflected the governing coalition.  That last bit is an important part of things that Kagan not surprisingly avoided. It hits too close to what might be deemed "political" matters.  

Contra to Roberts talk of people disagreeing of results alone, it most definitely part of the problem.  I won't repeat the last entry on that point except to say it is clearly part of why the Court does not seem legitimate to many people.  The Court is not a fair reflection, even to the degree nominees are not a simple 1:1 match to the population, of the current majority.  A basic reason a result to a broken nomination process.

Breyer was challenged pre-retirement  for attacking those who questioned the Court. He wrote a selectively written book (more an extended lecture) warning people who wanted major change though beforehand granted he was open to the idea of term limits.  The general assumption is that he lived and learned a bit.  I wonder (if he saw them) how he took the Kagan remarks. 

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We will see if there is any orders or other news (as it seems to do) that pop up next week. There is an execution scheduled. If it goes down, I will write a bit about it.

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* ETA: If you are curious why I feel this way, basically, I found Justice Alito's opinion (when he isn't being a hack, he has some good moments) pretty convincing.  Federalism includes the idea that someone might do a wrong against both the federal government and state by doing one act.  In the process, two sovereigns have different interests.  

Sometimes, the feds might be involved in the state prosecution, so it would be double jeopardy. Other times, it might not be good policy to have a second prosecution, or to have the federal government step in. But, as a matter of basic constitutional principle, I think maybe they were right there.