What Is Justice Elena Kagan up to Lately?

Most of us are aware of the fact that the Supreme Court is not devoid of politics. Pretty much everyone refers to Roberts, Thomas, Alito and Gorsuch as the “conservatives,” while Ginsburg, Breyer, Sotomayor and Kagan are the “liberals.” That often leaves Kennedy as the swing vote.

But given that these nine justices are appointed for life and work in pretty close quarters, there are also the politics of relationships. Last fall a lot of people who watch the Supreme Court closely noticed that Gorsuch could be driving a wedge between himself and conservatives on the court with his condescending attitude and attempts to dominate arguments. At the time, Nina Totenberg’s insight was particularly interesting.

My surmise, from what I’m hearing, is that Justice [Elena] Kagan really has taken [Gorsuch] on in conference. And that it’s a pretty tough battle and it’s going to get tougher. And she is about as tough as they come, and I am not sure he’s as tough—or dare I say it, maybe not as smart. I always thought he was very smart, but he has a tin ear somehow, and he doesn’t seem to bring anything new to the conversation.

Kagan’s role in the dynamics of these relationships has always been fascinating. That’s why I paid attention last week when Mark Joseph Stern noticed that she might be up to something.

Why is Kagan playing nice with the conservatives this term? What, put bluntly, is in it for her? Given her overall voting pattern, which remains progressive, it seems unlikely she’s ideologically drifting. It’s possible, though, that these defections are tactical maneuvers—efforts to build a moderate coalition to keep the court from veering rapidly to the right. Kagan isn’t losing the battle to win the war. She’s wrestling the court’s far-right justices to a draw in order to forestall disaster. And so far, she’s been surprisingly successful…

As an example, Stern notes that Kagan sided with conservatives on Masterpiece Cakeshop v. Colorado Civil Rights Commission.

The case revolved around an anti-gay baker who refused to make a cake for a same-sex couple. Colorado, which prohibits such discrimination, ordered him to stop turning away gay customers. He argued that the First Amendment protected his right not to make cakes for same-sex weddings, alleging that baking a cake is a form of expression.

The Supreme Court, in a 7–2 decision, ducked that question entirely, ruling instead that the Colorado Civil Rights Commission had expressed impermissible hostility toward religion while handling the case. Kagan, along with Justice Stephen Breyer, joined the court’s opinion in full. She also offered a narrow reading of the decision, one that countered Gorsuch’s more expansive (and bizarre) concurrence. Kagan effectively gave lower courts permission to read Masterpiece Cakeshop as a minor and unusual case, which they have gladly begun to do.

Stern’s conclusion is that Kagan is building a centrist bloc with Breyer, Roberts and Kennedy in order to diffuse politically charged conservative blockbuster decisions. This is precisely why, all the way back in the fall of 2013, Adam Winkler suggested that Kagan was the most influential liberal justice.

With the Supreme Court returning to work this week after a long summer recess, Kagan begins only her fourth term. Yet she’s already laying the groundwork to be an influential player on the court for decades to come. She’s not the Aggressive Progressive, but she could well be the next Earl Warren—a politically astute relationship-builder.

To paraphrase Reinhold Niebuhr, Kagan must deal with the Supreme Court as it is, not as she might want it to be. She will be working with Chief Justice John Roberts for the majority of her time on the court. In that kind of environment, there is no “defeating your enemies.” You simply have to outplay your opponents. That is very likely what Kagan is up to these days.

Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly.