A philosophical divide is tearing a rift between two liberal Supreme Court justices opposed to the right-wing slide of the institution, according to a report Friday.
Liberal Justice Elena Kagan has long navigated the Supreme Court's ideological divide with strategic restraint, carefully managing her approach to confronting the court's rightward shift. Her internal struggle was most revealing two years ago when she drafted a scathing dissent against Chief Justice John Roberts Jr. during the student loan forgiveness case, only to delete the most heated passages before publication.
But her liberal colleague, Justice Ketanji Brown Jackson, has taken a dramatically different approach. "I'm not afraid to use my voice," Jackson declared at a legal event, embodying a more confrontational stance. While Kagan has mostly sought to work within the system, Jackson has been more direct in her criticism.
The comparison was made by the New York Times Friday in a report that claimed differences of opinion were causing a rift over how to deal with President Donald Trump.
In one particularly pointed opinion, Jackson compared the court's decisions to Calvinball, a fictional game with no fixed rules. "Calvinball has only one rule: There are no fixed rules," she wrote. "We seem to have two: that one, and this administration always wins."
Kagan's approach has been more nuanced. As she told an audience, "Sometimes I draft dissents and then decide not to do them. Like, I draft a dissent and say, 'Really, is this worth saying? It just seems like a bunch of debaters' points.'"
The contrast between the two justices reflects a deeper philosophical divide. "You can try to hold the center together, and assume that people on the other side are acting in good faith," said Daniel Epps, a law professor, "or you can raise the fire alarm.
“It’s sort of like war. If you’re outgunned, do you try diplomacy or even appeasement, or do you make a noble charge and possibly get blown away?”
Justice Sonya Sotomayor has been somewhere in between, writing that, "Other litigants must follow the rules, but the administration has the Supreme Court on speed dial." Kagan similarly criticized the court's use of emergency applications "to reshape the nation's separation of powers."
In a pivotal moment, Jackson wrote a particularly stark dissent in a Trump-related case, declaring, "Eventually, executive power will become completely uncontainable, and our beloved constitutional Republic will be no more," signing off "with deep disillusionment, I dissent."
The underlying tension is profound. As Pamela Karlan from Stanford Law School noted, "The problem with waiting to speak frankly is that over time you normalize what's going on."
Yet Kagan remains committed to her approach, the Times wrote, telling an audience, "We're engaged in a collective endeavor of some importance. I want to participate and to continue to participate in that endeavor as best I can."
