Kagan has become a powerful voice of the liberal wing, trying to counteract the conservative majority in the fight over whether to preserve court milestones. She achieved two surprising victories on that front in the recently completed session.
And even as she dissented in perhaps the most consequential case of the term — which prevents judges from halting extreme partisan gerrymanders — Kagan delivered a statement from the bench that was arguably her most passionate of a near-decade tenure.
The 2010 appointee of President Barack Obama is the junior-most among the four justices on the left, yet she has become one of the more intriguing of the nine to watch. She is readier than her colleagues, including senior liberal Ruth Bader Ginsburg, to move to the middle of the ideological spectrum to strike deals to keep the court centered.
“I read Spider-Man as a kid,” she said of her youth in Manhattan, adding that she wanted to keep up with a brother who was “a big comic-book aficionado.”
She recalled that the toy in the patent-royalties dispute could emit pressurized string foam. She pretended she was pulling on the glove device. “Then you went like this,” she said, flinging out her hand before the audience, “and webs came out.”
“If you can’t get a Spider-Man reference into a case like that,” Kagan quipped, “you’re not working hard enough.”
“(I)n this world, with great power there must also come — great responsibility,” she wrote, quoting Spider-Man, in 2015. On Thursday, she reiterated her belief that, “We have the power to overrule cases, but we have the responsibility to use that power” sparingly.
“We take it super-seriously,” she said in a March session regarding the possible reversal of precedent. “I mean, we used to — and we need a good reason for it.”
Precedents on the line
In another dispute, in which the same five justices on the right led by Chief Justice John Roberts, rolled back property-rights precedent, Kagan said the court “smashes a hundred-plus years of legal rulings to smithereens.”
Yet in two of the most closely watched cases of the session, testing power in the executive branch, Kagan pulled out narrow majorities to keep in place much of existing precedent.
Conservatives are especially skeptical of agency authority over individual and business activities. Justice Neil Gorsuch, among the dissenters in both Gundy and Kisor, referred in the latter to “the explosive growth of the administrative state over the last half-century.”
Gorsuch and fellow Trump appointee Brett Kavanaugh have laid down markers that demonstrate the battle over federal regulation is just heating up.
While Roberts acknowledged that “excessive partisanship in districting leads to results that reasonably seem unjust,” he concluded that such challenges to it present political questions that should stay out of the federal courts.
As she took the rare step of reading portions of her dissent from the bench on June 27, the last day of the term, Kagan said the court majority had abandoned its duty to protect American democracy.
“I didn’t really pull my punches about the importance” of the decision to America’s political system, she told the Georgetown audience on Thursday.
“There’s no part of me that’s ever going to become accepting … of a decision … that essentially (says) that the courts shouldn’t get involved in gerrymandering no matter how bad it is, no matter how destructive of our political system it is,” she said.
On Thursday, she reserved her highest praise for the man she had succeeded in 2010, Justice Stevens. She described him as humble, respectful and “sharp as a tack” until his death at age 99 this week. She noted that he was taking daily swims in the ocean nearly until the end: “He seemed to all of us — eternal.”
Stevens had told her that he took stock at the end of every annual session. “He tried to think every term about all the things he could learn the next term,” he said, expressing admiration for a jurist who never felt “that the time for apprenticeship was over.”
For her part, Kagan later told the audience that she hoped her dissent against partisan gerrymandering lived on.
“You’re writing a dissent because you want to convince the future,” she said, adding that she had a message for advocates beyond the courts who might work for political reform: “Go for it — because you’re right.”