Why Does Elena Kagan Keep Roasting Brett Kavanaugh?
The Supreme Court is quiet. Too quiet. It is almost mid-June, and the court has yet to release any blockbuster decisions. The simple answer is also the obvious one: These cases have sharply divided the justices, who are still circulating majority opinions, concurrences, and dissents between chambers, sniping at each other in acid footnotes that belie their public claims of collegiality, civility, and mutual respect. Thats nothing new; tempers frequently flair as the court completes its work for the term (usually by late June). This anger often boils over into smaller decisions that dont grab headlines, but provide clues of whats coming down the pike. On Thursday, the Supreme Court released such a decision. And while the outcome is progressive, the opinions themselves hint that the liberal justices are bracing for a wipeout in the coming weeks. Advertisement  Advertisement  Advertisement  Thursdays decision, Borden v. United States, is not the kind of case that usually grabs headlines. It involves yet another dispute about the Armed Career Criminal Act, or ACCA, a federal law that consumes a shocking amount of the Supreme Courts time. ACCA imposes a 15-year mandatory minimum sentence on people who are found guilty under federal law of illegally possessing a firearm if they were previously convicted of three violent felonies under state law. But every state has a different criminal code, and their definitions of a violent felony dont map neatly onto ACCAs. The laws elements clause defines a violent felony as the use of physical force against the person of another. In Borden, the court had to decide whether a reckless offenseas opposed to one committed with criminal intentfalls under this definition. Advertisement  Again: This case is not the stuff of breaking news chyrons. But Justice Elena Kagan drew more attention to Borden than it might have otherwise received by relentlessly owning Justice Brett Kavanaugh at every turn. Kagan did not just rebuke Kavanaughs dissent; she ridiculed it with the wry incandescence of a stand-up comedian shutting down a heckler. Advertisement  While the Borden case came out 54, there was no majority opinion; Kagan wrote the plurality opinion for herself and three others, Justices Stephen Breyer, Sonia Sotomayor, and Neil Gorsuch. Justice Clarence Thomas, meanwhile, authored a solo opinion concurring in the judgment. Kavanaugh dissented along with the rest of the conservatives. So the decision was really 414. Kagan and Thomas analysis differed, but they ended up in the same place. Kagan wrote that the phrase use of force, when combined with the words against the person of another, implies intent: An individual must intend to harm someone else, so mere recklessness doesnt cut it. Thomas wrote that the phrase use of force, on its own, denotes intent, which similarly excludes reckless crimes from ACCAs elements clause. Kavanaugh, in dissent, claimed that both Kagan and Thomas got it wrong, insisting that reckless crimes do qualify. This debate can be illustrated with the real-world example of a fleeing shoplifter who jumped from a balcony and unintentionally landed on a woman, seriously injuring her. To Kagan and Thomas, that crime would not count as a violent felony under ACCA because the shoplifter did not intend to hurt her victimshe was reckless, not intentionally violent. To Kavanaugh, it would. Advertisement  Advertisement  Kavanaugh attempted to undermine Kagan and Thomas in several ways, all of which failed. First, he decried the fact that their opinions, combined, created a majority to exclude reckless crimes from ACCAs scope. He was especially irked that Thomas sided against him, even though Thomas dissented from a previous decision striking down a part of ACCA that would have encompassed reckless crimes. In a lengthy footnote, Kavanaugh tried to depict Borden as Potemkin precedent, its facade concealing internal divisions that rob it of coherence. Kagan, in response, dismissed Kavanaughs complaint as a complicated counting exercise apparently meant to show how unfair it is that his view has not prevailed here. She added that there is nothing particularly unusual about todays line-up.  Advertisement  At one point, Kagan used an extended metaphor comparing Kavanaugh to an amateur magician. Later, Kagan mocked Kavanaugh for reprising (if at higher volume) the governments flawed argument. She scorned him for essentially repeating what the government says, though with a distinctively question-begging quality. In one brutal passage, Kagan even accused Kavanaugh of engaging in machinations by rewriting ACCA to mean what he wanted it to say, adding: Statutory construction does not work that way: A court does not get to delete inconvenient language and insert convenient language to yield the courts preferred meaning.  Advertisement  At one point, Kagan used an extended metaphor comparing Kavanaugh to an amateur magician who inadvertently revealed his trick to the audience. Kavanaugh, Kagan explained, is putting the rabbit in the hat by adding words that do not appear in ACCA. Her kicker: We must construe the elements clause as it iswithout first inserting the word that will (presto!) produce the dissents reading.  Advertisement  Presto! Its great writing. (Though I must note that it may be inspired by Justice Antonin Scalias joke about the Supreme Wand, which was punctuated not with a Presto! but a Poof!.) As satisfying as it may be, however, it feels slightly out of place in an opinion with comparatively low stakes. Perhaps Kagan was simply having fun and assumed Kavanaugh could roll with the punches. If so, she miscalculated. Kavanaughs dissent contains not an iota of humor. He did not take up Kagans invitation to spar, as Chief Justice John Roberts often does. Instead, Kavanaugh seemed offended, almost wounded, by Kagans rhetoric. His dissent is interminablelonger than Kagan and Thomas opinions combinedand whiny. Kavanaugh spilled much ink suggesting that Kagan had imperiled the public by allowing lenient sentences for dangerous criminals. He even used the classic ploy of describing, in graphic detail, brutal assaults that no longer qualify as violent felonies under ACCA thanks to Borden. Advertisement  Advertisement  Advertisement  Todays decision will have significant real-world consequences, Kavanaugh huffed, asserting that there will be gruesome human costs to Kagans erroneous decision.  Presumably, while she and Kavanaugh were going back and forth behind the scenes, Kagan recognized that her colleague had not taken well to her roasting. She could have toned it down, but instead seems to have amped it up. Her opinion in Borden does not evince deep concern for Kavanaughs feelings or respect for his intellect. Like Sotomayor, Kagan sounds as if she is done trying to appease Kavanaugh, to woo him over to her side. Indeed, Borden marks the second time in a month that Kagan has taken direct aim at Kavanaughs style of judging: In May, she criticized him for treating judging as scorekeepingand more, as scorekeeping about how much our decisions, or the aggregate of them, benefit a particular kind of party. Now she has charged him with acting like a crybaby, regurgitating bad arguments, and warping the words of the law to expand mandatory minimums. Advertisement  This tactic does not inspire confidence that Kagan has talked Kavanaugh into finding a middle ground on this terms blockbusters. Over the next several weeks, the court is due to release opinions in several major cases where Kavanaughs vote could make the difference. In Fulton v. Philadelphia, the court could force Philadelphia to fund foster care agencies that refuse to work with same-sex couples. In Brnovich v. DNC, the court could kneecap what remains of the Voting Rights Act, opening the door to even more voter suppression. In Americans for Prosperity v. Bonta, it could give high-dollar donors to political charities a constitutional right to conceal their identities from the public, and weaken the constitutional basis for campaign finance disclosure laws. If Kagan had persuaded Kavanaugh to defect from the conservative bloc on any of these blockbusters, we might expect her to go easy on the justice in an off-the-radar case like Borden. By turning up the heat instead, she may have given us a distressing forecast of the gloomy weeks ahead.