The easiest way to interpret that trend is simply to conclude that Roberts is becoming more liberal. The scores also can shift as the composition of the court changes, and the court is still adjusting after the previous longtime swing justice , Anthony Kennedy, retired and was replaced in by Kavanaugh, who has so far proven to be much more reliably conservative. Think about it this way: One justice has to be in the middle of the court.
So when Kennedy retired and was replaced by a more conservative judge, someone else had to take his place in the center. In this case, that somebody was Roberts. The changes can be substantial with new justices, since the model has little data about their positions when they first join the court.
But with the addition of data, Roberts is now estimated to have actually been the likely median in both years. This effect is especially difficult to measure and the Martin-Quinn scores can only account for it in a limited way. Take one high-profile case from this term, where the justices considered a Louisiana abortion restriction that was functionally identical to a Texas law the court had struck down in In the previous case, Kennedy — who over the course of his career was ideologically unpredictable on a handful of high-salience issues, including the abortion, affirmative action and the death penalty — voted with the liberals against the Texas law.
This year, though, Roberts broke the tie, saying that while he still disagreed with the ruling , he felt he had to adhere to the precedent. This data is not yet available for the term that just ended. In other words, Roberts is still very conservative. Last term, according to an analysis by Adam Feldman, a political scientist who runs the blog Empirical scotus , Ginsburg and Sotomayor most often jumped in first.
Speaking a lot is one way that the minority bloc of Justices can try to set the tone and gain leverage; on a Court that has moved further to the right, the liberals are talking more. After Kennedy left the Court, according to Feldman, Kagan began speaking at greater length.
She and Alito. The Federal Election Commission was being sued for imposing limitations on corporate political spending, on the ground that it was suppressing free speech. A lawyer who knows Kagan recalls seeing her constantly in his neighborhood Starbucks, poring over papers, the summer before the case was heard.
Kagan had never been so nervous. Scalia got her mind back on track, paradoxically, by interrupting her and challenging the veracity of one of her opening sentences.
She had clearly sensed that she was fighting a losing battle, and had spoken to the Justices with striking directness about how they could vote against her position—in a limited way.
Chief Justice, as to whether the government has a preference as to the way in which it loses, if it has to lose, the answer is yes. At the Supreme Court, there are few, if any, dramatic courtroom turns in which a Justice unravels an entire argument before a dazzled audience. The lawyers are too good, the cases too complex.
But Kagan sometimes comes close. In , during the oral arguments in Obergefell v. Hodges, which secured a fundamental right for gay couples to marry, Kagan pushed John Bursch, the lawyer arguing against that right, to own some of the more preposterous implications of what he was saying.
If, as he contended, the state had an interest in encouraging procreation as the main purpose of marriage, and if allowing same-sex marriage would undermine this interest, then what about heterosexual couples who did not, or could not, have children? Would it be constitutional, Kagan asked, to bar them from marrying?
Ginsburg joined in: What about seventy-year-olds who wanted to marry? Bursch tried increasingly lame answers—a seventy—year-old man could sire children, he noted—but Kagan had set a trap. In Trump v. In the end, the Court sided with Trump and allowed the ban to go into effect, on the ground that the President has broad executive authority over national security.
But Roberts, perhaps with that back-and-forth in mind, issued a majority opinion that included some statements in which Trump explicitly described the travel policy as a Muslim ban.
It gives her more freedom to maneuver. This elusiveness distinguishes her from Ginsburg, who has made sexual-discrimination law her legacy, and from Sotomayor, who has a particular concern for the rights of criminal defendants. I think of Justice Kagan as a little bit like my old boss Justice Stevens—a common-law judge who takes each case as it comes to her. She loves statutory interpretation. The craft of puzzling through competing arguments and sources of authority is something she genuinely really relishes, more than particular results or subject areas.
Since Kennedy stepped down, in , and was replaced by Kavanaugh, the Court has lacked a swing Justice. And the cases that involve these alliances tend not to highlight the important social issues on which Kennedy joined the liberals: abortion and gay rights.
Because Kagan is relatively young for a Justice, she is likely to be working with colleagues on the conservative end of the ideological spectrum for a long time, and will have to think strategically about her role.
Last term, the Court ruled unanimously in thirty-nine per cent of the cases it considered after oral argument, the kind of statistic that Kagan often points to as evidence that the Justices are less partisan and more harmonious than the public realizes. Last term, in cases with a five-person majority, each of the conservative Justices voted with the four liberals at least once.
Roberts has demonstrated a concern for the public legitimacy of the Court, and for the future of his own reputation, and this occasionally leads him to vote in unexpected ways: in , he helped preserve Obamacare, and last term his vote prevented the Trump Administration from adding a citizenship question to the U.
The Martin-Quinn index, which two political scientists developed to place each Justice on an ideological continuum, suggests that Kavanaugh and Roberts now occupy the center of the Court, but both are, by almost any measure, conservatives. Kagan has openly worried about the lack of a swing Justice.
Last year, at the University of Toronto, Kagan described her approach to crafting compromises. Sometimes Kagan joins the conservatives in presumably good conscience on some issue, but in a way that might also assuage and flatter them.
Gregory Magarian, a constitutional-law scholar at Washington University in St. In , Kagan and Breyer played a critical role in the intricate compromise that saved Obamacare. Roberts seemed to want to uphold the Affordable Care Act, at least in part, but had been waffling for months on how to accomplish this, and rehearsing various combinations of votes. Kagan and Breyer joined him, though, in a 7—2 ruling that rejected the A.
But the veteran Court journalist Joan Biskupic recently published a biography of Roberts that reveals more than was previously known about the A. The Justices may not have engaged in the kind of back-scratching and dealmaking that legislators do, but they did practice the art of tactical persuasion.
If there was a chance that Roberts would cast the critical vote to uphold the central plank of the Affordable Care Act—and negotiations in May were such that they still considered that a shaky proposition—they were willing to meet him partway. In , Kagan and Breyer joined the conservative majority in a case known as Masterpiece Cakeshop. Sotomayor joined Ginsburg in dissenting.
But the opinion, which conservatives had hoped would establish a broad religious exemption to antidiscrimination laws, emerged from the Court as a limited ruling, governing only that particular case; members of the Colorado Civil Rights Commission had made disparaging comments about religion that invalidated their decision against the baker.
Kagan wrote a nothing-to-see-here concurrence that underscored how constricted the ruling really was—if the commissioners had not made remarks dissing religion, she implied, the decision would have gone in favor of the gay couple. The Court had certainly not granted anyone a license to discriminate. You could read the majority opinion and the concurrence together as a heads-up to other civil-rights enforcers—to protect their mission by watching what they said in public.
It was the kind of judgment bound to please nobody. No major precedent was set, leaving lower courts across the country that might be considering gay-rights questions free to go their own way.
Last term, Kagan joined Breyer and the five conservative Justices in allowing a forty-foot-tall concrete cross commemorating soldiers who died in the First World War to remain on public land in Bladensburg, Maryland. To Ginsburg, who dissented, joined by Sotomayor, the Christian symbolism of a giant cross was overwhelming—and its location, at an intersection maintained by the state, represented a clear violation of the establishment clause of the Constitution. To the majority, the cross was acceptable because it dated back to the nineteen-twenties and belonged to a venerable line of First World War memorials, whose particular religious significance had faded over time.
Kagan concurred with most of the majority opinion, written by Alito. She wrote a vigorous dissent last term, joined by the other liberals, when the majority declined to postpone the execution of a Muslim inmate in Alabama. Prison officials had denied his request that an imam attend his last moments. Still, when Kagan votes with the conservatives on religious questions, as she did in the cross case, she may earn some long-term good will, too, reminding them that she does not take the hard line that Ginsburg and Sotomayor do, or that past liberal Justices like William Brennan did.
One of the goals held dearest by the conservative legal establishment is that of shrinking the federal government, in particular by limiting the power of regulatory agencies. Among other things, this would involve dumping something called Auer deference, under which federal courts yield to agencies the authority to decide what an ambiguous regulation means.
More generally, it would mean that much of the administrative decision-making currently handled by agencies would be subject to more robust review by the courts. As a logistical matter, this goal is rather fanciful.
The Supreme Court has not ruled to overturn such a delegation of authority since , amid a war over New Deal legislation, which Franklin D.
Roosevelt ultimately won. Congress is not about to get into the weeds of rule-making—how many parts per million of this or that pollutant can end up in drinking water—even if it were more functional than it currently is. But many conservative jurists, including those on the Court, think that the administrative state has run amok, and they yearn to see it dismantled. Last term, Kagan was particularly effective at holding this effort at bay. She kept emphasizing the importance of stare decisis, the principle that the Court, in order to promote stability and the rule of law, generally adheres to its own past decisions, even—or especially—in cases in which it might rule differently today.
And, where possible, she struck a note of soothing moderation. More: Federal execution renews Supreme Court's divide over death penalty. Kagan doesn't write dissenting opinions often — this past term, she penned just one — but in , she couldn't hold back when the court ruled that federal judges are powerless to stop partisan state legislatures from drawing egregious legislative district lines.
None is more important than free and fair elections. With respect but deep sadness, I dissent. More: Supreme Court says federal courts cannot strike down partisan gerrymandering. Despite conservative control, Kagan and her fellow liberals have won their share of victories.
The Affordable Care Act was preserved, thanks to the willingness of Kagan and Breyer to weaken its expansion of Medicaid. Same-sex marriage was legalized nationwide. College affirmative action policies were upheld. Abortion restrictions twice were struck down. Marriage ruling turns 5: Acceptance, advancement, but opposition remains. In the most recent term, the court extended federal protections from job discrimination to gay and transgender workers and blocked the Trump administration from ending the Deferred Action for Childhood Arrivals DACA program, which protects , undocumented immigrants from deportation.
These are the most important decisions before the Supreme Court this year. Some of those victories are tenuous, but they show that the court during Kagan's tenure often has favored compromise over conservative absolutism.
She understands that judging is a collective activity," Dellinger says. One major area of success is administrative law, which sets the rules for government agencies. Last year, Kagan wrote the decision that preserved federal agencies' power to interpret ambiguous regulations.
The court set out limits on those powers. Deference "is sometimes appropriate and sometimes not," Kagan said, applying "only when a regulation is genuinely ambiguous" and the agency's rule is reasonable. Last month, she said such ambiguity allowed the Trump administration to exclude employers with religious or moral objections from helping to provide insurance coverage for contraceptives, a position at odds with liberal orthodoxy.
That ruling drew harsh criticism from abortion rights groups, the liberal Center for American Progress, the American Civil Liberties Union and Joe Biden, the presumptive Democratic nominee for president. Similar critiques followed the court's ruling that religious schools are exempt from most employment discrimination claims. Kagan, along with Breyer, agreed with the five conservatives in both cases. More: Supreme Court upholds autonomy of religious employers in employment discrimination cases.
More: Supreme Court allows religious, moral exemptions for employers opposed to contraceptives. Kagan's zeal for following the court's precedents, old and new, fits that same pattern. The conservative majority has overruled several of them in recent years, a practice she regularly assails.
For most liberals, the crown jewel of precedents is the court's ruling in Roe v.
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