Six Things I Learned From Jodi Kantor’s Latest Article

Jodi Kantor continues her series of articles with inside scoops about the Supreme Court. In the past, I’ve been critical that she has focused only on the Court’s conservatives. To her credit, Kantor has done a deep dive on the Court’s three progressives. Much of what she wrote is consistent with things I’ve gleaned from listening to oral argument and reading opinions. But there is some new stuff .

First, the Court installed some kind of tracker into the bench to indicate how much time each Justice speaks for.

At oral arguments, she has taken up far more speaking time than her colleagues, even though the court several years ago tucked timers into the justices’ imposing wood table to tally each of their ticking minutes, according to several people familiar with the devices.

How did we not know about this?! How does this system even work? My best guess is that the timer starts ticking when a Justice’s microphone is being used. Are these digital timers or analog timers? Did the Chief Justice have these installed during the pandemic so the Justices could keep track of time during the seriatim rounds? Its seems obvious enough that the Justices have zero impact whatsoever on how long the Justice speak for. I want a picture of these devices!

Second, we learn that Justice Jackson apparently reads prepared statements during the conferences:

Now, in private Supreme Court conference meetings, she tended to go on longer than the other justices, sometimes reading from statements she had prepared in advance. Some of the other justices became annoyed by how much airtime she consumed there and during oral arguments, according to both liberals and conservatives who heard the complaints.

Justice Douglas would complain that Justice Frankfurter made 50-minute long statements at conference, since that was the length of a Harvard Law School class. I do not know if Frankfurter brought prepared statements.

Third, Kantor confirms the compromise in Masterpiece Cakeshop:

In 2018, the court sided with a Colorado baker who had refused to create a wedding cake for a same-sex couple. The result looked like a loss for gay rights. But Justices Kagan and Breyer had helped persuade Justice Kennedy to rule on grounds so narrow they neutered the decision, according to people familiar with the proceedings. The baker won — but the results could not be applied to any other case.

Masterpiece Cakeshop was a 7-2 vote. It seemed clear enough that Justices Kagan and Breyer went along with Justice Kennedy’s super-narrow decision on the Free Exercise Clause, to avoid a ruling on the Free Speech Clause. Of course, 303 Creative blew up that narrow holding.

Kantor also provides this reporting on how Kagan and Breyer approached compromises:

The court she joined in 2010 leaned rightward, but not by much, and she devised a way of operating that sometimes allowed her to win. Justice Kagan became a confidante of the chief justice, and so avidly monitored the mood of Justice Anthony Kennedy — a Republican appointee who had become the court’s swing vote — that people who worked with them joked that she knew what he had for breakfast each day. While Justice Stephen Breyer, a fellow liberal also devoted to compromise, was spontaneous, Justice Kagan was tactical. She assessed where to expend capital and what to write off as a lost cause, and took copious notes on the views her colleagues expressed in conference meetings. She did not publicize her maneuvers or gains, lest visibility make her less effective.

Laurence Tribe was right. Kagan would be persuasive to Justice Kennedy.

Fourth, Justice Kagan apparently circulated a very harsh dissent in the student loan case, Biden v. Nebraska, which she deleted:

As they prepared to strike down President Joseph R. Biden Jr.’s student loan forgiveness program, she blasted Chief Justice John G. Roberts Jr. in a draft dissent she circulated within the court, according to several people familiar with the episode.

But before the decision went public, she hit delete. Her final dissent was adamant, but the most heated passages never saw daylight, as she abided by a taboo among the justices against steaming publicly at colleagues or the institution.

For years, as the court has moved right, Justice Kagan has agonized over whether to be more confrontational, confidantes say, and has mostly concluded that to be effective, she must be careful about rocking the boat. . . .  Before she deleted the most vehement passages from her student loan decision, she circulated them to other justices — a warning, perhaps, of how scathing she could choose to be.

I thought that the published dissent was pretty harsh, but maybe it could have been worse.

Fifth, there are extended discussions about a growing rift between Justices Jackson on the one hand, and Justices Sotomayor and Kagan on the other.

Ever since Justice Jackson arrived in 2022, friction has been building: between her and Justices Sotomayor and Kagan, who are more aligned strategically, and between her and the rest of the court, according to more than a dozen associates of the justices, including both liberals and conservatives. They spoke on condition of anonymity, in order to share sensitive details about closely held conversations.

Kantor confirms that Justice Kagan tries to persuade Justice Barrett–something that has been clear to me for some time.

Justice Kagan’s approach goes like this: Even on a 6-to-3 court, the Democratic appointees can sometimes strategize their way into narrower rulings, smaller losses or even outright victory. To do so, the liberals must generally sway the chief justice and Justice Barrett. Admirers of Justice Kagan say she is prudent to show restraint, displaying her frustration only in flashes. Justice Jackson’s outspokenness could risk those votes, or further erode faith in a court that may yet stand up to Mr. Trump, they say.

People who worked with her describe her attitude as: Let’s make this opinion 30 percent better. . . .

As Justice Jackson settled in, Justice Sotomayor and Justice Kagan were drawing closer to one another, according to numerous people who know them both, and also forming ties with Justice Barrett, whose vote they desperately needed. . . .

Barrett described Kagan as her friend on the Court, who shared an “analytical” mode of thinking.

But Justice Jackson is not interested in this compromise.

The two more senior liberals tried to advise and coordinate with Justice Jackson, people close to all three jurists said in interviews. The new justice sometimes deferred, softening or withdrawing opinions. But she also felt compelled to express frank disagreement even if it caused friction.

…

By the summer of 2024, two years into Justice Jackson’s tenure, Justices Sotomayor and Kagan had grown worried that their newer colleague’s candor and propensity to add her own dissents were diluting the group’s impact, according to their confidantes. . .  .

Her choices have been purposeful, people close to Justice Jackson said. Winning cases was going to be almost impossible, she believed. Any liberal gains exacted through diplomacy would be small and not worth the price of staying silent.

I often describe Justice Jackson’s appointment as moving the Court to the right. Students are perplexed by this answer. But I think it is right. Jackson subverts Kagan’s ability to make compromises, and turns what could be a narrow 8-1 or 7-2 decision into a sharp 6-3 decision.

Sixth, Kantor describes Justice Kagan as “despondent.”

As the court approaches the pivotal Trump questions, Justice Kagan is the one to watch, scholars and people close to her say.

Her tone in recent private conversations has been despondent, they said. Because of her discipline, her words have special potential to critique the court, they said.

I have made a similar observation. Justice Kagan’s questions have not been as sharp, her opinions have not been as tight, and her dissents have not been as memorable. For some time, she has seemed off her game. It would be easy enough to blame the Court’s conservatives, but I suspect that KBJ bears a lot of the blame. Maybe Justice Kagan should have resigned during the Biden administration, in addition to Justice Breyer.