The Liberal Justices Aren’t as United as You Might Think

From the New York Times, [music] I'm. Michael Bubaro. This is the Daily. Today, [music]. over the past few years, members of the. Supreme Court's liberal minority [music]. have voted over and over again to oppose. the court's conservative [music]. majority, offering what might look like. a united front of resistance. [music].

But behind the scenes, my [music]. colleague Jodie Caner has uncovered. growing tensions between those liberal. justices over the best [music] way to. fight back. It's [music] Wednesday, December 10th. Jody. >> Michael, >> good to have you back in the studio.

>> Great to be back with you. >> You are very well along in a line of. reporting that in my estimation has. pulled back the curtain on the unseen. decision-m that goes on among the nine. justices of the Supreme Court at a. hugely consequential moment for the. court. Yes, we want to understand not. only the legal decisions they're making, but we're asking who are these nine. people who hold this much power and how.

do they function together as a body? How. do they influence one another? How does. power flow inside the Supreme Court? And. we're doing it at a time when the court. is deciding these major questions about. how much power President Trump will. have. Who can he fire? Can he go around. Congress to defund an agency? Can he end. birthright citizenship? What is going to. happen to his tariffs program?

>> The court is literally looking into. almost all those questions. They're. determining the contours of his power. And the liberal justices who, as you. know, are badly outnumbered, see. President Trump as a threat to the. constitutional order. And they want to. persuade their conservative colleagues. of that point of view. But. >> no simple task. >> Exactly. This is a wing of the court. that holds very little power right now. and it's trying to use what little power. it has to mitigate the rightward lurch.

of the court. But the liberal justices. are split on the best way to do that. >> Okay. Based on your reporting, what. exactly does this split on the left look. like? Well, the starkkest split is. between Justice Elena Kagan and Justice. Katanji Brown Jackson. who have taken very different approaches. to countering the conservative dominance. of the court and you see a real tension.

between [clears throat] their two. different approaches emerging. >> And where should we begin to tell that. story? >> Well, let's go back to the first moment. when one of these people arrives at the. court. Justice Elena Kagan appointed in. 2010 by President Barack Obama. Now, she. is appointed specifically to be a. diplomat. Interestingly, I found out she. was recommended to President Obama by. Justice Antinine Scalia. >> So, you've got the kind of.

>> a very conservative justice recommending. a pretty progressive one. >> Oh, you've got this duke of conservative. legal thought saying, "Send us someone. smart. Send us Elena Kagan. >> Send us a former uh dean of Harvard Law. >> who had a reputation. for treating conservatives well, inviting them in, being a good diplomat. at Harvard Law School, getting. conservative faculty appointed. >> And at the time that she gets to the. court, what is its ideological mix.

looking like? And what kind of decisions. are coming out of that court? >> Well, it's a 54 court. It leans. conservative, but not by that much. And. right at the center, you've got Justice. Anthony Kennedy, who was appointed by a. Republican, but sometimes voted with his. liberal colleagues, and the Chief. Justice, John Roberts, definitely. conservative, but had a desire to be. independent. >> Mhm. So, a conservativeleaning court. where surprising things can happen.

>> Things were still up for grabs. And so. she comes to the court and she's never. been a judge before, but she's very. strategic and she comes up with a. methodology of her own for how to. operate on a five4 court. It's like I love the stuff where we can. all really engage each other, try to. persuade each other, >> where it's an uphill battle for her, but. she has some chance of prevailing. And. we're an institution, we're a very.

collegial institution, notwithstanding. the fact we have all these opportunities. for disagreement. [music]. >> And her methodology is to form. relationships and look for areas of. agreement. So she becomes a confidant of. Chief Justice Roberts. >> who's part of the conservative majority. >> Exactly. She also keeps a really close. eye on Justice Kennedy. She is following. his moods, his concerns, his. inclinations. And people who worked with. them at the time even joked to me that.

she knew what he had for breakfast every. morning. [music]. >> There are some things that we do where. almost nobody is persuadable, but there. are a lot of things we do where [music]. folks are. And. >> she took notes on what her colleagues. thought in conference meetings. There are instrumental reasons for sure. to get along with everybody and to. maintain good relations with everybody. because. >> and what she's trying to do is find. common ground with them, build consensus. >> do that these questions matter and.

they're important and I often have. strong views about them and the most. >> and she's trying to win outright [music]. [clears throat]. >> which she does in some cases. >> How so? So, for example, President. Obama's healthcare law was challenged. over and over by conservatives, and. several times the cases made it up to. the Supreme Court. And at least in two. of those cases, it was close. People did. not know which way it was going to go.

And the law survived in part because. Justice Kagan and others on the court. helped build liberal and conservative. coalitions. Mhm. >> So, let's call those on balance. victories for liberals. They were. complicated, but they were victories. >> Mhm. That she helped achieve. >> Exactly. And she's also doing this other. thing, which is winning by losing. >> How does that work? >> Well, um, now within a particular case,

there is often an ability to compromise. things out. And [music] you know, >> if you're a Supreme Court justice and if. you're a Supreme Court justice in the. minority and if you can't win, what you. want to do is make the outcome less bad. from your perspective, >> which which you the way that often. happens in um the court's business is by. sort of redefining issues a little bit. Like if you narrow the issues, it tends.

to be that you'll have greater. consensus. Whereas [music] if you like. >> people who worked with her said that she. would say things in private like let's. make this opinion 30% better. >> going to do you have to keep talking and. you have to find ways of like. readjusting the issue or of convincing. each other and over the course of that. [music]. >> So there's this 2018 case called. Masterpiece Cake Shop. This is the. Colorado Yes. the Colorado [music] cake. baker case. And there's a baker who says.

because of my religious beliefs, I. should not be required to bake cakes. [music]. >> for a samesex wedding. >> For a samesex wedding. So what happened. [music] in this case is that it looked. like a loss for liberals. The court. decided [music]. in the baker's favor. However, thanks to Kagan and others behind the. scenes, they decided on grounds so. narrow that the [music] result was.

pretty meaningless. >> The whole point of the Supreme Court is. to set precedent. >> that applies broadly to cases that are. comparable. >> Exactly. And in this case, it was such a. restricted decision that it barely. applied to others. It was a very hollow. victory for conservatives. [music]. So in this era of a five to four court. where Kagan and the Liberals know for. the most part they're going to lose the. biggest cases. She has clearly found a.

way to make legal lemonade out of. lemons. >> She's getting business done. It's an. atmosphere in which a dealmaker can get. some traction. And that requires. sacrifice by the way. requires. discipline. >> because. Justice Kagan did object to some of the. court's decisions and she is fully. capable of punching hard. >> and there are a couple of decisions in.

which she lets loose on the court but. for the most part she decides that it. doesn't serve her mission. >> right if you're Justice Kagan and you. want to keep getting business done with. a conservative majority. A little bit of honey is going to go a. long way. >> Totally. These people serve for decades. together. A slight can last a lifetime. And in fact, in my reporting, I even. found an example where she wrote a very.

strenuous descent, >> disagreeing exactly with the court's. decision and with the chief justice's. opinion, but she took lines out of it. M. >> her original. draft. really had gone hard after the chief. justice, but before the decision became. public, she softened it. She took those. lines out. So that's the approach that. Justice Kagan takes. Keep the peace,

make deals, and then about a decade into her. service, everything changes. All right. Uh we have uh a breaking news right now. Ruth Bader Ginsburg has passed away. >> in September of 2020. Justice Ruth Bader. Ginsburg dies. >> A loss rocking the political universe. Tonight, the battle lines over the. court's future already being drawn. Let's begin [music] with. >> today. It is my honor to nominate one of.

our nation's most brilliant [music] and. gifted legal minds to the Supreme Court. >> She is quickly replaced, as we remember, by Justice Amy Coney Barrett. >> There've only been 114 Supreme Court. justices in history. So, everyone is. important, but this one is especially. important because it will put six. conservatives on the court. >> And all of a sudden, it is a 63. court. And Amy Coney Barrett is not just. any conservative justice. She's put.

there by President Trump pretty [music]. explicitly to deepen the conservatives. hold over this court. >> Correct. The perception is not that he. has appointed just some regular. conservative justice, but that she has. been put there to complete the 50-year. conservative legal revolution. Please y. oppose America. >> PLEASE OPPOSE AMERICA. >> Confirm her. Now.

her. >> she is heralded on the right as kind. [music] of a conservative judge of their. dreams. >> She's a very religious woman. She's got. seven kids. The right and the left both. decide they know exactly what that. means. >> She is derided on the left. She is a.

fulfillment of the very long dream of. the bishops in the United States to. overturn row [music] to deny people. contraception and ultimately just to. control women's fertility. >> She is called a handmaidaid. She is. called a [music]. throwback. >> We know why he picked Amy Coney Barrett. We know what she's sent to do and we. know what she's going to do. >> Things just look hopeless for the. Liberals. It it looks like they're going. to be locked out for a generation,

[music]. >> right? There's kind of a liberal death. sentence heir. to this moment. >> Correct. It's just not clear if they're. going to have any opportunity to win. And sure enough, pretty soon the court. overturns Ro v. Wade and completes that. 50-year conservative legal revolution. >> Right. It didn't take very long. >> No. >> And so I have to imagine that for.

Justice Kagan, that strategy of trying. to build consensus and win influence. with the conservatives in the court, that doesn't really seem like it's going. to work anymore. >> Yes. And just to give you a sense of how. despondent the liberals were in that. moment, think back to the descent they. co-wrote in the Dobs case. The three. liberal justices, including, of course, Justice Kagan, explicitly stated their. sadness at the court's ruling. They.

wrote, "With sorrow for this court, but. more for the many millions of American. women who have today lost a fundamental. constitutional protection, we desent.". >> So, this is a real low point. But. something interesting is also happening. in this moment, which is that Amy Coney. Barrett turns out to have an independent. streak. She's voting with the liberals. sometimes, especially in smaller cases.

And when she votes with the. conservatives, she sometimes says that. she doesn't fully agree with them. For. example, she says very clearly that she. disagrees with Justice Clarence Thomas's. use of history in several important. opinions. She says, "You're going too. far. I don't agree with your. methodology." And then it turns out. behind the scenes she had not even. wanted to take dos the case that.

overturned Row. >> Just explain that. >> She told colleagues, "This is too soon. This is too fast. So here, President. Trump has cast her in this position of. this mother with seven children is going. to be the capstone vote to overturn the. federal right to abortion. And in fact, she walks into the court and says, "I'm. not so comfortable playing an assigned. role." So even though she ultimately. does vote to overturn Row, we learned.

that she was ambivalent, especially. about the timing of doing that. >> Exactly. She did not want to take that. particular case. >> So what does Kagan do with that. information? She has a little bit of an. opening perhaps with Justice Amy Coney. Barrett, but for the most part, she's. just going to keep losing. >> Well, my understanding is that she was. very torn. On the one hand, you're. right. She does see a little bit of an.

opening. She and Justice Barrett are. forming something of an intellectual. bond. But I think the question that. Justice Kagan has at this point is. whether Justice Barrett, not to mention. Chief Justice Roberts, are ever going to. vote with the liberals on the really big. cases in this era, the gamechanging. ones. And if not, is it worth continuing. to hold back, trying to find common. ground? So at this point, Justice Kagan. is struggling to figure out what her.

best strategy is, what she tells people close to her is. that she's agonizing. She's saying to. herself, "Things are changing. Is. diplomacy still going to work. or do I need to get more. confrontational?" Hm. [music]. >> And just as she is trying to puzzle that. out, a new liberal colleague arrives on. the court who is far less torn about. those questions.

[music]. [music]. We'll be right back. So Jody, talk about this new justice who. arrives on the court as we all know it's.

Katanchi Brown Jackson and what she does. to this dynamic that you have been. describing. >> So Justice Jackson arrives at the. Supreme Court in 2022. I am humbled and. honored to be here and I am also. >> and first of all she's got a different. biography, a different set of influences. than Justice Kagan. >> How? >> Listen, she's got a lot of the markers. of membership in this club. She's got. double Harvard degrees. She was a clerk. at the court. >> But in some ways, her experience is very.

different. All of my professional. experiences, including my work as a. public defender and as a trial judge, have instilled in me the importance. >> She's a former public defender. Needless. to say, she's the first black woman on. the court, and she turns out to be kind. of an outsider figure. I have dedicated. my career to ensuring that the words. engraved on the front of the Supreme. Court building, equal justice under law,

are a reality and not just an ideal. Thank you for this historic chance to. join the highest court. But also the. court she arrives on is very different. from when Justice Kagan arrived in 2010. This is a 63. court that has just overturned. major precedents. >> Right. Kagan arrives on a 5-4 even if.

she ends up in a 63. >> As one of my sources puts it, the. difference between four votes and three. votes is more than one. The difference. is so so so big. And Jackson comes onto. a court where she just knows she's going. to be in descent for much of her career. >> She doesn't feel the same possibility. that Justice Kagan did. [music]. So she begins to explore different ways.

of making her voice heard. >> such as. >> well for one thing she's more outspoken. [music]. in oral arguments. >> Justice Jackson. >> Yeah. So two two questions. Is there any. indication from. >> seniority is a really big deal at the. Supreme Court and there's kind of this. tradition that the junior justice defers. >> so I'm sorry can I just help [music] I I. don't understand are you saying that. >> and according to public tabulations. justice Jackson is really exceeding. everybody else in air time.

>> are part of this inquiry too so no one. >> I don't think so I think it's to show. that you have racial segregation [music]. >> there's this great quote from her where. she says I am not afraid to use my voice. >> even in the admissions. >> All right, I have little time. I'm. sorry. >> No, I'm sorry. I don't. >> Yeah. So, but you say they've changed. the process, but now at least they're. not looking. [music]. >> And then she's doing kind of the same. thing in opinions, writing separately.

Meaning the way it works on the Supreme. Court is that Michael, if you and I are. in the same coalition and if you're. writing the opinion, I usually just go. with whatever you're going to say, even. if I don't like agree with every word. >> Offer a few edits and swallow hard. >> Yeah. The traditional attitude is like, Michael is taking this one. He's going. to speak for the coalition. It's not. exactly the article I would have. written, but. >> I'll stick with you. >> Okay. She wants to be a little bit more.

specific. >> There are some times when. even after the principal descent is. written, I have a slightly different. perspective or a different take on. something or this is an issue. >> and she speaks up in a way that's a. little unusual for a junior justice. >> where I will say forgive me justice but. I need to write on this case. It took. the chief justice.

16 years after he arrived on the court. to do separate writing, like his own. little separate side dish of his own. legal reasoning. Justice Jackson starts. doing it immediately. Um, and it's. because I feel like I might have. something to offer. Um, >> and she is striking a different tone. she's willing to go there in terms of. being critical of her colleagues and.

critical of the institution. We see this very early in the. affirmative action decision. For. instance, she basically says that her. colleagues are clueless about racism. >> Justice Jackson, you know, it's. interesting. She is a very warm person. and she's very cautious in interviews, but on the page she can scorch. And. remember to say that this world is. formal and polite is to put it mildly.

If you say I dissent instead of I. respectfully descent, that is like a. burn. [laughter]. >> So she's quickly establishing herself as. kind of the anti- Kagan. >> She has a different theory than Justice. Kagan of how to be an effective justice. She feels she has to be blunt. You know, like associates of hers have described. her thinking to me and her strategy is. deliberate. She has basically reasoned.

that on a 63 chord, she's not going to. persuade her colleagues and any gains. that would be exacted would be so small. that they wouldn't be worth the price of. staying silent. >> And so in her opinions, she's often. speaking to the public. She's saying, "You need to know about this. I want to. raise your awareness. I find this. troubling. And you know, it's a kind of. writing for history in which you're.

betting that even if nothing happens. immediately, it will result in long-term. change. And then after Trump gets back into. office and she sees the barrage of. President Trump's legal actions, she. decides she has to warn the public about. what's happening. And so we start seeing. these opinions from Justice Jackson in. which she's writing from inside the. house and she's saying things like this. court is beholden to moneyed interests.

She says this court is enabling our. collective demise. her message in. opinions since President Trump has. gotten back into office sound to me like. she's saying, "I'm sitting here [music]. inside the Supreme Court and I know. these colleagues. I see what's going on. on the inside and it is really bad.". [music].

>> And how is this being received by Kagan. given her approach? things start to get. tense among the liberal justices. There. is just this existential dilemma and. this split in strategy because you have. to realize that Justice Jackson going. for it is potentially very threatening. to Justice Kagan's strategy, >> right? Look, in practical terms, the.

only way for liberals to win on this. court is for Justice Barrett and Chief. Justice Roberts to vote with them. So, the risk that Justice Jackson is taking. is that she could alienate these people. and then the liberals don't have any. chance at all. >> That is not the path to Kagan's. metaphorical 30% better ruling. >> No, it's not. But the Jacksonites, and. remember that Justice Jackson has a lot. of adherence who believe that what she's.

doing is very important. What they would. say is, "Justice Kagan, what are you. holding back for? What do you think. you're going to gain from this?" And. they have some evidence to back up their. position, >> such as what? >> For example, go back to Colorado and the. question of who's going to serve these. gay couples who want to get married. >> The Baker case. >> Yeah, exactly. Another case comes along. This is like a carbon copy of the Baker. case except that it's a graphic designer.

this time who doesn't want to make. wedding websites and invitations for gay. couples. And so this time the. conservatives just win full out and that. little compromise is wiped away. And the. principle is established that yes, a. religious person can refuse to serve a. gay couple because it doesn't comport. with that person's religious beliefs. So. basically, this would be fuel for.

Justice Jackson's argument of what is. the point of pretending that we're going. to get something from this conservative. majority. You're not getting your 30%. Because this court just wiped out the. 30% you even thought you got back in. 2018. >> Correct. But my sources debated this to. be honest again and again because there. were Kaganite sources who said Justice. Kagan won 5 years of protection for. these gay couples. Don't knock it. That's a lot of real people who.

benefited from this decision. And on top. of that, Justice Kagan has still gained. some victories on this 63 court. Last. term, she had a win on federal agency. power and she won three votes from the. center of the court. Three three votes. from the chief justice, Justice. Kavanaaugh, Justice Barrett. So there is. still potentially some case for. compromise. So you can go I mean the. liberal.

lawy the law professors the Supreme. Court thank you the Supreme Court. advocates they are lit up by this. question of what is the best strategy. and then in the most important case of. last term Justice Jackson finds herself. in a real clash with Justice Barrett. This was a case called Trump Vicasa in. which the court decided that federal. judges could no longer issue nationwide. injunctions.

And by doing that, they're really. limiting the judiciary's power to stand. up to President Trump. And so what happens in those opinions is. that Justice Barrett and Justice Jackson. have a giant public fight. >> [music]. >> Justice Jackson in her descent writes. that quote eventually executive power. will become completely uncontainable and.

our beloved constitutional republic will. be no more. And she signs off by saying. with deep disillusionment [music] I. desent. And those words are a direct criticism. of Justice Barrett, who has written the. majority opinion for the conservatives. And Justice Barrett, who is usually a. pretty mild writer, she hits back in the. opinions. She says, "We're not even. going to consider some of what Justice.

Jackson says here.". >> [music]. >> So this kind of brings to the four the. fear we mentioned which is that justice. Jackson could alienate Justice Barrett. and the Chief Justice. >> So what we're seeing clearly is both. approaches finding their limits in this. moment. Kagan's compromises are getting. washed away by the sheer severity of the. court's rightward turn and Jackson's.

sharply worded descents are beginning to. alienate the conservatives in a way that. might even further marginalize the. courts liberals. So I guess the question. then becomes. which of these strategies is most likely. to work out in the longer term? Yes, that is certainly a debate. Just as. Jackson appears to have chosen a stance. and have chosen a tone and maybe that.

will change, but at least recently she's. been very forceful. >> Mhm. >> The justice who really has a decision to. make is Justice Kagan because remember. she's the one who's agonized all these. years over whether she's doing it right. people close to her who saw her over the. summer, they said she was despondent. about what was going on, that she is. really worried about the state of the.

country and the law. Right now, Michael, as we sit here, this. is when the Supreme Court is making the. real lasting decisions about President. Trump's power. The decisions from last. term were very consequential. They were. also mostly temporary. So the question. >> cans were kicked down the road to now. >> Exactly. So the question is does Justice. Jackson remain on this path and for. Justice Kagan, who does she ultimately. want to be and how will the strategic.

decisions by both of these justices. affect how much power President Trump. ultimately gets and what will that mean. for the court, the country, and the. future of our democracy? Well, Jody, thank you very [music] much, >> Michael. It's always a pleasure. [music].

We'll be right back. [music]. Here's what else you need another day. On Tuesday, the Democratic governor of. Illinois, JB Pritsker, signed a law that. restricts immigration enforcement. [music] outside state courouses, limits. the information that can be given to. immigration agents, and makes [music] it. easier for residents of the state to sue.

immigration agents if they believe their. rights have been violated. The law is a direct response to. President Trump's crackdown on. undocumented immigrants in the Chicago. area, [music] which has resulted in. thousands of arrests and repeated. clashes between agents and residents. [music]. But it's unclear if the Trump. administration will observe the new law. In response to it, the Department of. [music] Homeland Security said that.

arresting immigrants in courouses is. legal and quote is common sense. Today's episode was [music] produced by. Rob Zipo, Mary Wilson, and Ricky Netski. It was edited by Devin Taylor. contains. [music] music by Brad Fischer, Will. Reed, Marian Lozano, Dan Powell, Rowan. Demisto, and Pat McCusker, and was. engineered by Chris [music] Wood.

That's [music] it for the daily. I'm. Michael Bubaro. See you tomorrow. [music].