Justice Elena Kagan, in Dissent

What to do about the loss of trust in the Supreme Court

Official portrait of Justice Elena Kagan

Justice Elena KaganPhotograph courtesy of the United States Supreme Court, Public Domain

A dissent by Justice Elena Kagan, J.D. ’86, in June illustrated why she won acclaim as a writer when she began to publish opinions after joining the Supreme Court in 2010.

In the case, the six Republican-appointed justices made it much harder for the executive branch to curb a primary cause of global warming. They decided that the Clean Air Act does not give the Environmental Protection Agency (EPA) authority to limit carbon dioxide emissions from power plants by shifting them away from burning coal to generate electricity. The Clean Power Plan, as the regulation was called, was designed to help reduce those harmful emissions. The ruling was one of the last, and most extreme, of the Court term ending last summer, which created upheaval in American law and life.

The crux of the majority opinion by Chief Justice John G. Roberts Jr. ’76, J.D. ’79, was that the case involved a “major question” with “vast economic and political significance” requiring “clear congressional authorization” for the EPA regulation, and the statute did not provide that.

In her dissent, joined by then-Justice Stephen G. Breyer, LL.B. ’64, and Justice Sonia Sotomayor, Kagan explained, “The majority claims it is just following precedent, but that is not so. The Court has never even used the term ‘major questions doctrine’ before.” That unprecedented action provided a foundation for advancing the anti-regulatory campaign of the political right.

Much of the dissent is a tutorial on how the Court normally reads a statute to understand its meaning. Kagan presented those intricacies without legalese, in a form of translation. Most outstanding writing by justices still needs unpacking, with definitions of terms, explanations of precedents, and the like. She did the unpacking. Her writing sounded like she was talking, in plain terms and relatively short sentences that a non-lawyer could grasp. Her role was that of an adjudicator, but she wrote like an advocate for what law required. She rebuked the majority for not addressing, “straight up,” the provision at issue: Did it, “when read in context and with a common-sense awareness of how Congress delegates, authorize the agency action here?”

Textualism is a totem of the right, supposedly to correct past judicial activism and keep unelected judges from rewriting law. The idea is that the Court should apply a law’s meaning when it was enacted, based on its words and structure, not its legislative history. Kagan called out the hypocrisy of the majority: “The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards. Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed.”

The nation’s founders, Kagan explained, understood the need to give “sweeping authority” to agencies in the executive branch “to resolve some of the day’s most pressing problems.” Congress relies, “as all of us rely in our daily lives, on people with greater expertise and experience. Those people are found in agencies. Congress looks to them to make specific judgments about how to achieve its more general objectives. And it does so especially, though by no means exclusively, when an issue has a scientific or technical dimension.”

The majority said that the agency’s system for changing how power plants should generate electricity was not what Congress approved. Kagan pushed back, using the majority’s own definition of a significant system: “‘Under such a scheme, sources that receive a reduction in their emissions can sell a credit representing the value of that reduction to others, who are able to count it toward their own applicable emissions caps.’ Does that sound like a ‘system’ to you? It does to me too.”

Kagan was speaking directly to readers as stakeholders. She was speaking to everyone in the office of citizen, which Justice Louis D. Brandeis, LL.B. 1887, said was the most important in American democracy. She does that often in her opinions, like no other justice in history. In public remarks, Kagan has said that, in writing opinions, “I tend not to try to get people to feel things.” But her writing often stirs feelings—of purpose, comprehension, and belonging. She is among the best writers ever on the Supreme Court.

Over time, her dissent went on, “the administrative delegations Congress has made have helped to build a modern Nation.” Fewer workers have been killed in accidents on the job. Fewer planes have crashed and cars wrecked. Americans have safer consumer products, medications, and food, and cleaner water and air. The Court, she pointed out, “has historically known enough not to get in the way.”

But not the current majority: in slashing the role of agencies, it smashes norms. For instance, the Constitution specifies that the Court should decide only genuine disputes. A mind-boggling aspect of the case was that the prohibited regulation was a phantom: it had never gone into effect. After the Obama administration issued it—fulfilling an international treaty to limit global warming, following the hottest year then on record—Republican state officials sued to delay the regulation. An anti-regulatory majority granted their plea.

Kagan highlighted, “That action was unprecedented: Never before had the Court stayed a regulation then under review in the lower courts.” The Trump administration’s environmental priority was to kill the regulation, rolling back policy combating climate change. It did. The Biden administration reinforced how irrelevant the Obama rule had become: it announced it would issue a different one. Kagan reminded readers that “the Court’s docket is discretionary”—it decided 66 cases last term, from more than 7,000 petitions—and observed that “because no one is now subject” to the non-regulation, “there was no reason to reach out to decide this case.”

Her dissent finished in the voice that sets her writing apart. It is lucid, eloquent, feisty, and to the point: “Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy. I cannot think of many things more frightening.”

The Making of a Dissenter

Kagan’s replacement of the Republican-appointed Justice John Paul Stevens, who led the Court’s left wing, marked an historic change. The ideological divide has always existed, but for the first time, it was between justices appointed by presidents of opposing parties. On the right were five Republican appointees. Four Democrat appointees were on the left. The Republican-led Court had moved measurably to the right in the previous 40 years, since the end of the Warren Court. Now, the shift was expressly partisan.

As the Obama administration’s solicitor general in 2009, Kagan had argued in the Citizens United case that the Court should uphold restrictions on corporate spending in elections. The Roberts Court struck down those restrictions, and two landmark precedents upholding them, in 2010 before the State of the Union address of President Barack Obama, J.D. ’91. In it, he lambasted the majority for opening “the floodgates for special interests—including foreign corporations—to spend without limit in our elections.” As a senator, he had voted against Roberts’s confirmation to the Court because, Obama said, “he has far more often used his formidable skills on behalf of the strong in opposition to the weak.” Picking Kagan for the Court, Obama was confident she would do the opposite.


Thurgood Marshall, for whom Kagan clerked, is one of her heroes. When President Obama nominated her to be a justice, he quoted from a remembrance she wrote about Marshall.Photograph in the public domain

Justice Thurgood Marshall, for whom Kagan clerked 35 years ago, is one of her heroes. In a moving remembrance Kagan published after he died, which Obama quoted when nominating her, she recounted the justice’s philosophy: “It was the role of the courts, in interpreting the Constitution, to protect the people who went unprotected by every other organ of government—to safeguard the interests of people who had no other champion”—to “show a special solicitude for the despised and disadvantaged.”

When she became a justice at 50, Kagan had enjoyed a long run of honors and absorbed a few career disappointments. She had graduated summa cum laude in history from Princeton in 1981, won a fellowship to Oxford, where she got a master’s degree in philosophy, and graduated magna cum laude from Harvard Law School (HLS), where she was supervising editor of the law review. After clerking, she worked for two years as a lawyer at Williams & Connolly, the renowned litigation firm. She spent four years each at the University of Chicago Law School and in the Clinton administration: she got tenure at 35 as a professor and worked in the White House Counsel’s office and then as deputy director of the Domestic Policy Council.

The first disappointment came when she was prepared to leave the Clinton administration. She had given up her tenure at Chicago when her leave from there ended so she could continue in the administration. The law school faculty decided against reappointing her. The second came the same year. She was nominated to the U.S. Court of Appeals for the D.C. Circuit, but was one of many nominees left hanging by the Republican-controlled Senate saving those seats for the Republican President George W. Bush to fill.

HLS hired her as a visiting professor in 1999, giving her tenure in 2001. As she later, cheekily, said in a confirmation hearing, she was “a famously excellent teacher”: her teaching and scholarship focused on administrative law and constitutional law. In 2003, then-President Lawrence H. Summers, Ph.D. ’82, chose her as the school’s first female dean. In those six years, she helped HLS continue to turn from an unhappy institution jarred by warring factions, to a happier, more ideologically diverse one.

Her third disappointment came in 2007, after Summers stepped down as president. She thought the deanship might be her last job in the law, with her next as a university president. Instead of picking her to succeed Summers, Harvard selected Drew Gilpin Faust. But in a turn of fortune, that disappointment left her available to become solicitor general and, a year later, a justice.


Cheekily, Kagan said in a confirmation hearing, she was “a famously excellent teacher”: her teaching and scholarship focused on administrative and constitutional law.Photograph by Justin Knight

As solicitor general as well as dean, Kagan was a pragmatic leader and consensus builder who sometimes won over conservatives and irked liberals. She was known for her passion and her brains. In public, she was funny and down-to-earth. In private, she was also sometimes brusque and tough to work for. On the Court, she showed all those traits and thrived. She was an impressive player, serving as a bridge between left and right. The connections she made with other justices contributed to the nine’s collegiality, helping them function as a Court.

She wrote memorable majority opinions. A liberal one explained why the Court struck down sentences for life in prison without parole, for people who committed murder when they were under 18: the sentences failed “to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” A conservative one laid out why the Court upheld a harsh Kansas law under which criminals are convictable who would not be guilty under a traditional insanity law: drawing that line “is a project for state governance, not constitutional law.”

In 2016, when Justice Antonin G. Scalia, LL.B. ’60, died and Obama nominated then-Judge, now-Attorney General Merrick B. Garland ’74, J.D. ’77, for the Court, the balance of power between right and left on the bench seemed about to flip, for the first time in almost half a century. Kagan seemed well-positioned to work with Garland in leading a new left-leaning Court majority.

Instead, with 10 months left in Obama’s presidency, the Republican-controlled Senate refused to consider the nomination. The 2017 replacement of Scalia with Neil M. Gorsuch, J.D. ’91, and, in 2018, of Justice Anthony M. Kennedy, LL.B. ’61, with Brett Kavanaugh, maintained the 5-4 right-left split. But the death of the left’s Justice Ruth Bader Ginsburg in September 2020 and the Republicans’ replacement of her with Amy Coney Barrett created the super-majority of six.

The group is a result of America’s toxically polarized politics and dangerously distorted democracy. Five of the six Republican-appointed justices—Roberts, Alito, Gorsuch, Kavanaugh, and Barrett—were nominated by presidents elected with less than a majority of the popular vote. The last three were confirmed by senators representing less than half the country. The creation of the super-majority locked Kagan into the minority, a status likely to last the rest of her time on the Court.

Kagan published her first dissent in her first term as a justice. Her dissents have classic purposes: to provide a fairer, more trustworthy reading of the law, and to elucidate the majority’s misguided use of power—a guide, perhaps, to correction by some future Court.

Kagan published her first dissent in her first term as a justice. In a different case, where the Court allowed Christian ministers to open government meetings with Christian prayers, she warned that the majority “damages one of this nation’s defining national commitments,” separation of church and state. Her writing in dissents is especially vibrant and sharp. “There is no sugarcoating today’s opinion,” she criticized in another, when the Court ruled state governments could not force non-union public employees to help pay for contract bargaining even though they gain from it: the majority was “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” Her dissents have classic purposes: to provide a fairer, more trustworthy reading of the law, and to elucidate the majority’s misguided use of power—a guide, perhaps, to correction by some future Court.

“Wherever it can,” she laid out in a dissent when the Court made it harder to challenge discriminatory voting laws under the Voting Rights Act, “the majority gives a cramped reading to broad language. And then it uses that reading to uphold two election laws from Arizona that discriminate against minority voters. I could say…that this is not how the Court is supposed to interpret and apply statutes. But that ordinary critique woefully undersells the problem. What is tragic here is that the Court has (yet again) rewritten—in order to weaken—a statute that stands as a monument to America’s greatness, and protects against its basest impulses.”

The bite in that one was a harbinger. In the recent two terms, Kagan filed more dissents than majority opinions. Marginalizing her as a decider, the supermajority escalated her purpose as a dissenter, dissecting the regressive views of the Constitution that the right wing employs and identifying their consequences. Throughout, she defends what she sees as essential to the Republic—the stability and integrity of the rule of law.

The Abortion Case

Dobbs v. Jackson Women’s Health Organization, decided in June with a majority opinion by Justice Samuel A. Alito Jr., confirmed a crucial insight of the journalist Ruth Marcus, J.D. ’84, in The Washington Post: “A six-justice majority is a different animal. A six-justice majority, such as the one now firmly in control, is the judicial equivalent of the monarchy’s ‘heir and a spare.’ The pathways to victory are enlarged.”

A majority of five Republican-appointed justices, without the chief justice, terminated the half-century-old right to abortion. Roberts voted to tightly restrict the right to abortion, without striking it down. The other five lost his vote and still remade the law. Dobbs stands alone among Court rulings over the centuries: it is the first that revoked a right considered fundamental under the Constitution.

All the justices in the majority were raised Catholic. Their ruling permits laws making it a crime to perform or have an abortion, based on the theological belief that life begins at conception. That encroaches on the religious freedom of the many whose faith leads them to believe otherwise—say, that life begins at birth—while leaving the health of pregnant women of all faiths vulnerable, particularly those of color and with low incomes.

As the EPA ruling did, along with others swelling gun rights and deflating protections for criminal defendants and the separation between church and state, the abortion case showed how the “lopsided right-wing majority on the Supreme Court,” as the legal scholars Joseph Fishkin and William E. Forbath ’74 wrote in The Washington Post, “consistently, across an enormous range of issues, finds ways to turn right-wing policy preferences into constitutional law.”

Last term was hyper-contentious at the Court: it decided only 29 percent of its cases unanimously, the lowest rate in decades. It decided 21 percent of its cases by the 6-3 polarized split. The Roberts Court has moved farther to the right than any since 1931. It heavily favors the strong over the weak.

The Court changes every time a new justice joins, as Justice Ketanji Brown Jackson, ’92, J.D. ’96, did in June following the retirement of Breyer, for whom she clerked 23 years before. But the abortion decision showed how utterly the Court had already changed. The decision accelerated the Court’s shift in the eyes of the American people into a third political branch. In 1999, a Gallup poll found, about half those responding said they had “a great deal” of confidence in the Court. By this June, that group had shrunk to a quarter, an historic low in polling. The Supreme Court is a distrusted institution.

In the abortion ruling, the five-justice majority did what no party in the case asked for. The decision showed how utterly the Court had changed—accelerating its shift in the eyes of the American people into a third political branch. The Supreme Court is a distrusted institution.

In the abortion ruling, the five-justice majority did what no party in the case asked for. Mississippi petitioned the justices to decide whether a law was unconstitutional that prohibited abortions before viability, when a fetus is able to have meaningful life outside the womb. As the Jackson Women’s Health Organization summarized in a brief, under Roe v. Wade and later cases, before viability, it was up to “the pregnant person, and not the State, to make the ultimate decision” whether to end a pregnancy. Mississippi banned most abortions after 15 weeks. Since Roe was decided in 1973, improvements in medicine have reduced the point of viability from 28 weeks to between 23 and 21 weeks, not 15. On NPR, the New York Times’s Court correspondent, Adam Liptak, recounted that when he realized the majority would end the right to abortion, he thought, “Man, we are in for a different Supreme Court.”

Breyer, Sotomayor, and Kagan jointly responded in an extraordinary dissent. The justices explained what the majority got wrong and why the Court got Roe right—and again, in 1992, Planned Parenthood of Southeastern Pennsylvania v. Casey, which narrowed the right to abortion yet solidified Roe as a precedent, and which Dobbs overruled. They presented a very different understanding of the Constitution and how the Court has long interpreted it.

The Alito opinion judged that the principle of stare decisis, following precedent, “does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

The dissenters agreed that the Court should overrule some previous wrong decisions. But they stressed that to maintain “a stability that allows people to order their lives under the law,” the Court rule is that it isn’t acceptable to strike down a precedent simply because it was wrong. Stare decisis calls for a “special justification” to overturn a precedent. There was none in the Mississippi case: “Nothing—and in particular, no significant legal or factual change—supports overturning a half-century of settled law giving women control over their reproductive lives.”

That was especially so, they continued, because the cases framing the right to abortion were not wrong: “Roe and Casey were from the beginning, and are even more now, embedded in core constitutional concepts of individual freedom, and of the equal rights of citizens to decide on the shape of their lives. Those legal concepts, one might even say, have gone far toward defining what it means to be an American.”

The right was based on the due process clause of the Constitution’s Fourteenth Amendment, prohibiting states from depriving “any person of life, liberty, or property, without due process of law.” The dissenters wrote, “The majority makes this change based on a single question: Did the reproductive right recognized in Roe and Casey exist in ‘1868, the year when the Fourteenth Amendment was ratified’?” The majority answered no, based on its view of history: Alito’s opinion declared that neither the Constitution’s text nor original meaning clearly established a right to abortion. It was not an unenumerated right either (valid though not spelled out) because “a right to abortion is not deeply rooted in the Nation’s history and traditions.”

But, the dissenters said, the majority’s method of reading the Constitution had as its “core legal postulate” that “we in the 21st century must read the Fourteenth Amendment just as its ratifiers did.” And: “If the ratifiers did not understand something as central to freedom, then neither can we.” In 1868, however, and in 1788 when the original Constitution was approved, women were not “full members of the community embraced by the phrase ‘We the People.’”

How is it that “our Constitution, read now, grants rights to women, though it did not in 1868?” The dissenters wrote, “The answer is that this Court has rejected the majority’s pinched view of how to read our Constitution.” And: “The Framers (both in 1788 and 1868) understood that the world changes. So they did not define rights by reference to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit future evolution in their scope and meaning.”

Head on, the dissenters attacked the theory of originalism that reads the Constitution as if its meaning were frozen in the distant past: “As a matter of constitutional method, the majority’s commitment to replicate in 2022 every view about the meaning of liberty held in 1868 has precious little to recommend it. Our law in this constitutional sphere, as in most, has for decades upon decades proceeded differently. It has considered fundamental constitutional principles, the whole course of the Nation’s history and traditions, and the step-by-step evolution of the Court’s precedents. It is disciplined but not static. It relies on accumulated judgments, not just the sentiments of one long-ago generation of men (who themselves believed, and drafted the Constitution to reflect, that the world progresses). And by doing so, it includes those excluded from that olden conversation, rather than perpetuating its bounds.”

Doing law that way kept the Court from imposing personal proclivities of justices. Failing to approach law that way in Dobbs, the dissenters wrote in an angry reprimand, allowed biases to run amok: “The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.”

The dissent didn’t say which justices wrote which parts. But a lot of the discussion about how the Court long interpreted the Constitution sounded like Kagan. It began with a fundamental framing: “For half a century,” Roe and Casey “have protected the liberty and equality of women.” It included frank statements about consequences, calling the ruling “catastrophic”: “As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare.”

It was needling and knowing: “The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relations, and procreation.” And: “When the Court decimates a right women have held for 50 years, the Court is not being ‘scrupulously neutral.’ It is instead taking sides: against women who wish to exercise the right, and for States (like Mississippi) that want to bar them from doing so.”

This discussion was flecked with conversational touches: a frisky exclamation point (“the 13th (the 13th!) century”); a no-nonsense verdict (“But that is flat wrong”); a self-deprecating joke (“We could go on—and in fact we will”). Its summary about stare decisis was steely and concise: “It is a doctrine of judicial modesty and humility. Those qualities are not evident in today’s opinion.”

Legitimacy and Democracy

In July, after the term ended, at a judges’ conference in Big Sky, Montana, Kagan spoke about the effects of the Court’s flaunting of its power: “The thing about judicial decision-making is that you can’t throw the bums out; we are there for life. And in particular with respect to our constitutional rulings, there is no way for any other branch of government to reverse them.” She went on, “But if, over time, the Court loses all connection with the public and public sentiment, that is a dangerous thing for democracy.” Her emphasis on the threat to democracy was conspicuous.

Kagan was addressing the Court’s loss of trustworthiness—what Court-watchers call legitimacy. That quality is elusive and ill-defined, yet indispensable: little it decides is self-implementing, so it relies on the people’s willingness to abide its rulings to sustain its function in American democracy. The depletion of its legitimacy is a paramount concern about the Court since it has moved far to the right during the years she has been a justice. A major reason for the Biden Supreme Court commission, which presented possible reforms like creating term limits for justices, was “the importance of protecting or enhancing the Court’s legitimacy.” James Fallows ’70, the Atlantic writer who rarely comments about the Court but recently felt compelled to, said in his newsletter that the majority has piled the Court’s “legitimacy into a big heap and set it ablaze.”

Legitimacy is commonly yoked to the Court by “of”—the legitimacy of the Court. That can be misunderstood to mean the Court possesses legitimacy because it’s the Court. A line in Alito’s abortion opinion suggested he holds that view. He expressed disdain for distress about the Court’s loss of legitimacy: “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.” To him and the majority he spoke for, apparently, the plunge in public approval doesn’t matter.

But in Kagan’s view, the public’s trust in the Court is vital, so the trustworthiness of the Court is, too. It is a reason for the judicial modesty she values: justices don’t inherit legitimacy. Legitimacy is a form of respect from the people, which the Court either fosters or fritters away by what it decides—and, critically, how. Its majority opinions must shape and command public opinion. Story professor Richard H. Fallon’s book on the subject is Law and Legitimacy IN the Supreme Court (emphasis added): Replacing of with in underscores what Kagan highlighted: “The Court earns its legitimacy by the way it behaves.”

The American people will do what the Court says they should only if it warrants their respect. If not, people flout the Court and the rule of law, damaging the underpinning of democracy. Legitimacy ensures compliance with rulings even when they are unpopular or when a majority of the unelected justices strike down laws made by an elected body, like Congress. Legitimacy serves as the Court’s army and its treasury, since it has neither to enforce its rulings.

August 6, 2010: President Obama and Kagan in the East Room of the White House celebrating the U.S. Senate’s 63-37 vote to confirm her as the Supreme Court’s 112th justice.Photograph by Chip Somodevilla/Getty Images

Kagan offered a solution to the problem, which squares with the origin of the word “legitimacy”: the Latin word “lex” for law became the root “leg-” for the Latin “legitimus,” meaning “lawful.” She explained, “Overall, the way the Court retains legitimacy and fosters public confidence is by acting like a court” (emphasis added). The nine justices would disagree about what advancing the rule of law entails, she recognized, but she said what she thinks that means: “Respecting precedent…That is what prevents changes in the composition of the Court from producing changes in our law.” “Consistent application of methodologies that constrain and discipline judges….You can’t be an originalist and say originalism changes in what we look for in the way we apply it from one case to the next case.” “The scope of decision-making…Judges keep to the straight and narrow, and only decide the questions…that are before them.” She concluded, “What it means for a court to do law is follow those three things above all.”

In September, at a judicial conference, Roberts spoke about the Court’s legitimacy crisis by poo-pooing it. He said that “simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the Court.” Alito commented to the Wall Street Journal: “saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.” In a public talk, Kagan held her ground. “Judges create legitimacy problems for themselves,” she remarked, “when they instead stray into places where it looks like they’re an extension of the political process or when they’re imposing their own personal preferences.” The public has a right to expect that “changes in personnel don’t send the entire legal system up for grabs.”

Avoiding the Calamity of “Government by Brute Force”

In her new role as a dissenter with an eye on the long term and the largest stakes, Kagan’s focus is on the most important questions about the Court today: What are the limits, and the limiters, of its power?

A grim, increasingly prominent view, as one scholar wrote, is that the “latest term was merely a supercharged, unbalanced version of what the Court has done for most of its history.” Kagan’s stance, instead, is that the Court’s record generally reflects how America has progressed, using fair rules and mostly consistent reasons to shape law that manifests that progress, especially in protecting freedom. But, as her dissents reveal, opinions of the current majority sometimes defy established legal reasoning, with crushing consequences. As the Dobbs dissent argued, quoting a dissent by Thurgood Marshall: “Power, not reason, is the new currency of this Court’s decision-making.”

The historian Sean Wilentz once commented about Kagan’s writing as a justice, “Eloquence is not a prerequisite for being a great justice, but it is an enormous asset.” Now a principal dissenter, she is using her voice and her position on the Court to replenish its legitimacy. She is trying to ensure the Court does its part, and not the reverse, in preserving the rule of law.

The divide on the Court reflects the divide in the nation, which leading historians compare to the years of disintegration before the Civil War. Sean Wilentz, the esteemed Princeton professor who directed Kagan’s college thesis and is her favorite historian, commented: “We’re on the verge of what Hamilton in ‘The Federalist’ called government by brute force.” Kagan’s underlying project is to help the Court and the country avoid that calamity, which could include a political attack on the Court like the crisis that consumed it during the 1930s.

Wilentz once commented about Kagan’s writing as a justice, “Eloquence is not a prerequisite for being a great justice, but it is an enormous asset.” In the distant-seeming chapter of her Court tenure as a regular shaper of rulings, ending just two years ago, she developed her voice as a writer in a way that expanded her role as a justice to that of a teacher about American democracy.

Now a principal dissenter, she is using her voice and her position on the Court for a more daunting purpose. Explaining the indispensability of the Court’s legitimacy, she is doing what she can to help replenish it. She is trying to ensure the Court does its part, and not the reverse, in preserving the rule of law—and the system of government built on it.  

Contributing editor and journalist Lincoln Caplan ’72, J.D. ’76, a visiting lecturer and senior research scholar at Yale Law School, last wrote for this magazine about Justice, and former Harvard Law School professor, Felix Frankfurter, LL.B. 1906, LL.D. ’56, in the September-October 2022 issue.

Read more articles by: Lincoln Caplan

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