Jodi Kantor of the New York Times has written another insider account, this time focusing on “The Debate Dividing the Supreme Court’s Liberal Justices.” The gist of the piece is that liberals on and off the Court are divided about whether to conciliate (as Justice Kagan mostly does) or confront the conservative supermajority (as Justice Jackson mostly does). I offer some thoughts.
I. The Dissenters’ Division of Labor
Kantor’s article follows many commentators in assuming an either/or strategic choice. The liberal dissenters, it seems, should choose either conciliation or confrontation. Yet dissenting coalitions at the Court have—for many decades—resisted that pat choice through a division of labor. Some dissenters adopt a conciliatory posture, and others simultaneously leap to confrontation.
In a past era, Chief Justice Roberts or Justice Alito would often conciliate on the right, while Justices Breyer or Kagan would conciliate on the left. And, in that same era, Justices Scalia and Thomas would confront on the right, while Justices Ginsburg and Sotomayor would do so on the left.
Different justices choose different approaches partly due to their distinctive personalities. For instance, Justice Scalia was not, shall we say, a natural compromiser. Justice Jackson, it seems, isn’t either.
Once we see that the choice isn’t either/or so much as both/and, many criticisms of the liberal dissenters have far less force. Take the sophisticated view set out by Professors Micah Schwartzman and Nelson Tebbe, who criticized Justices Breyer and Kagan for engaging in “Establishment Clause appeasement” (see here). Even if those justices’ conciliatory approach were unjustified in itself, however, it might become justified in light of the fact that Justices Ginsburg and Sotomayor adopted a more confrontational approach.
One might worry that this division of labor would result in judicial opinions that work at cross-purposes. The conciliators might make the confronters look radical, and the confronters may cast the conciliators as faint-hearted. This problem is especially plausible when two different types of dissent appear in the same case—something that, Kantor reports, has lately troubled the liberal justices. Offering a united front does have its benefits and is sometimes preferable.
But part of the point of specialization is to appeal to different audiences that are likely to have divergent reactions. True, the conciliators may lose stock among more partisan liberals, and the confronters may be coldly received by some liberal institutionalists. In that sense, a divided strategy may mean that all the liberal justices’ individual reputations suffer to some extent. Kantor’s article documents this cost. So long as both liberal audiences are activated, however, rhetorical specialization would have fulfilled a larger strategic purpose.
On balance, the different roles I have described are more likely to be complementary than contradictory—somewhat like “good cop, bad cop” strategies.
II. Super-Minority Strategy
Now, one might think that the fact that there are only three liberal justices meaningfully changes the strategic situation, as compared with prior eras featuring four liberals and a swing justice.
Perhaps conciliation is less valuable when undertaken by members of the liberal super-minority simply because that faction has so few votes to work with. In an earlier era, Justice Kagan conciliated to obtain liberal wins, at least sometimes. Now, she conciliates almost entirely to obtain fewer or smaller loses. That change is doubtless frustrating and trying. Yet the marginal value of achieving fewer or smaller loses might be very high precisely because the six conservatives would otherwise do so much more that liberals oppose.
Similarly, one might think that confrontation is more valuable for a super-minority, because that legal ideology ultimately has to win, if it is to win at all, outside the Court. Confrontation also has appeal because it generates excitement and ideological fandom, especially in our polarized time. Yet here, too, there are counterpoints. The conservative supermajority plays a central role in shaping legal culture. And veering too far away from prevailing legal thought can be alienating not just on the Court but elsewhere, too. Justice Jackson’s solo dissent in Trump v. CASA (unlike Justice Sotomayor’s lead dissent) risked this outcome. There, Justice Jackson appeared to argue that universal injunctions are essential to the rule of law, even though they had been opposed by the Biden Administration (among others on the left).
So while various specifics have changed, dissenting justices’ strategic situation remains comparably difficult and structurally similar today, even though the relevant justices now comprise a super-minority of three.
III. Seniority and Justice Sotomayor’s Shifting Roles
Interestingly, Justice Sotomayor has become more conciliatory over time, as reflected in Kantor’s depiction of her. I think there are two reasons for this shift, and both have some broader applicability.
First, it is generally easier and more effective for newcomers to confront and for seasoned jurists to conciliate. Conciliation often trades on a shared history of reciprocal assistance and personal affection. If someone has earned your respect, it is harder to rage against them, and there is more to lose by doing so. A longtime friend is much better situated to ask for compromise. I think it apparent that Justice Sotomayor now has substantial professional relationships with at least Justices Gorsuch and Barrett—two critical votes.
Underscoring this first consideration, Justice Jackson’s arrival means that there is now a newer liberal justice ready to assume a confrontational posture. So Justice Sotomayor’s comparative advantage leans all the more toward conciliation.
Second, Justice Sotomayor has become the senior liberal justice. (Kantor points this out in an interview.) That quasi-institutional position entails leadership, both at the Court and beyond. And leadership roles are more conducive to institutional attitudes. Justice Rehnquist’s pivot toward moderation when he became Chief Justice Rehnquist offers a parallel.
IV. Behind the Scenes in Biden v. Nebraska
A couple years ago, Biden v. Nebraska featured a widely discussed skirmish about judicial rhetoric. Kantor’s piece offers some background on this event.
The Chief Justice’s majority opinion noted in part:
It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary. . . . Reasonable minds may disagree with our analysis—in fact, at least three do. See post, p. ___ (KAGAN, J., dissenting). We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.
A number of commentators and other readers felt that this was an instance of arrogant finger-wagging by the Chief Justice, perhaps in part because the dissent—while strongly worded—was fairly conventional in tone.
But Kantor’s reporting implies that the Chief’s passage was largely crafted in the face of some very hot rhetoric from Justice Kagan. Drawing on insider accounts, Kantor reports that Kagan deleted the relevant passage at nearly the last minute, after other justices had seen it. In that context, it makes more sense for the Chief Justice to be sternly if cryptically talking about “some recent opinions” and “disparagement,” even as he notes that Kagan has ultimately engaged in mere “disagreement.”
At the same time, I think that Kantor’s reporting misses an important subtlety in what Kagan accomplished. Kantor makes it seem as though Kagan simply pulled her confrontational passage in favor of conciliation. In fact, Kagan was ambiguous in her final draft, simultaneously placating some readers while riling up others.
Here is Kagan’s most relevant passage, with the key words in bold:
From the first page to the last, today’s opinion departs from the demands of judicial restraint. At the behest of a party that has suffered no injury, the majority decides a contested public policy issue properly belonging to the politically accountable branches and the people they represent. In saying so, and saying so strongly, I do not at all “disparage[ ]” those who disagree. Ante, at 26. The majority is right to make that point, as well as to say that “[r]easonable minds” are found on both sides of this case. Ante, at 25. And there is surely nothing personal in the dispute here. But Justices throughout history have raised the alarm when the Court has overreached—when it has “exceed[ed] its proper, limited role in our Nation’s governance.” Supra, at 1. It would have been “disturbing,” and indeed damaging, if they had not. Ante, at 25. The same is true in our own day.
Here is part of what I wrote about this passage in a prior post (see “Biden v. Nebraska and Strategic Ambiguity in Judicial Rhetoric”):
Imagine a hypothetical justice in Kagan’s position here. The imagined dissenter would have a strong interest in placating the Chief, to say nothing of other members of the majority coalition. Further, the dissenter might want to preserve public respect for the Court, which is both an important institution and the main source of the dissenter’s own prestige. At the same time, the dissenter would not be eager to bow to a call for civility. The dissenter might to want to stoke outrage regarding the majority, avoid diluting her own opinion’s rhetoric, and promote her personal reputation among the Court’s critics.
Ambiguity allows the dissenter to accomplish all these goals. People like me and, perhaps, the Chief read [Kagan’s] passage as conciliatory because we expected conciliation. By contrast, others read it as sarcastic because they expected sarcasm. Readers may not even notice the ambiguity. And, when the ambiguity remains invisible, it operates with maximal effect. These reader-specific responses allow a strategic writer to have her cake and eat it, too.
Strategic ambiguity offers a more virtuosic way of resolving the dissenters’ strategic dilemma. In essence, the division of labor that normally operates within the dissenting group of justices instead operates within a single paragraph.