The Debate Dividing the Supreme Court’s Liberal Justices

On a yearslong campaign to sway her conservative colleagues, Justice Elena Kagan has mostly refrained from harshly criticizing them. But two years ago she briefly let her discipline slip.

As they prepared to strike down President Joseph R. Biden Jr.’s student loan forgiveness program, she blasted Chief Justice John G. Roberts Jr. in a draft dissent she circulated within the court, according to several people familiar with the episode.

For years, as the court has moved right, Justice Kagan has agonized over whether to be more confrontational, confidantes say, and has mostly concluded that to be effective, she must be careful about rocking the boat.

But in recent months, Justice Kagan’s liberal colleague, Justice Ketanji Brown Jackson, has started warning the public that the boat is sinking.

In one opinion after another, Justice Jackson has accused the right side of the court of favoring “moneyed interests,” and of “complicity” that enables “our collective demise.”

At oral arguments, she has taken up far more speaking time than her colleagues, even though the court several years ago tucked timers into the justices’ imposing wood table to tally each of their ticking minutes, according to several people familiar with the devices.

“I’m not afraid to use my voice,” she said at an event for lawyers in Indianapolis in July, describing her blistering dissents.

Along with the senior liberal, Justice Sonia Sotomayor, the two jurists are in what people close to them describe as an existential dilemma over their lack of influence. Badly outnumbered, seated for the long haul of life tenure, Justices Kagan and Jackson in particular are divided on the best approach to jobs in which they are more or less sentenced to fail.

Ever since Justice Jackson arrived in 2022, friction has been building: between her and Justices Sotomayor and Kagan, who are more aligned strategically, and between her and the rest of the court, according to more than a dozen associates of the justices, including both liberals and conservatives. They spoke on condition of anonymity, in order to share sensitive details about closely held conversations.

The three liberal justices declined to comment. But increasingly, the tensions are spilling out in opinions, including in the most important case of last term. Justices Jackson and Amy Coney Barrett dueled so harshly that some liberal observers feared that Justice Jackson had alienated Justice Barrett, a key swing vote.

Their differing approaches will now be tested in a term with vast consequences. The court has been granting Mr. Trump enormous — but mostly temporary — latitude. Climactic fights over his policies and power are just ahead. Next week, the justices will consider whether he can unilaterally impose tariffs.

Justice Kagan’s approach goes like this: Even on a 6-to-3 court, the Democratic appointees can sometimes strategize their way into narrower rulings, smaller losses or even outright victory. To do so, the liberals must generally sway the chief justice and Justice Barrett. Admirers of Justice Kagan say she is prudent to show restraint, displaying her frustration only in flashes. Justice Jackson’s outspokenness could risk those votes, or further erode faith in a court that may yet stand up to Mr. Trump, they say.

Justice Jackson, on the other hand, is aiming for an audience beyond the court, speaking to the public and history. Her proponents argue that Justice Kagan is the one taking risks — of missing the moment and lending cover to a court that is weakening democratic norms.

As the three justices wrestle with their choices, the debate in liberal legal circles over their strategy is intensifying. “You can try to hold the center together, and assume that people on the other side are acting in good faith, and try to maintain common ground, in the name of preserving the rule of law,” said Daniel Epps, a law professor at Washington University. “Or you can raise the fire alarm.”

“It’s sort of like war,” Mr. Epps continued. “If you’re outgunned, do you try diplomacy or even appeasement, or do you make a noble charge and possibly get blown away?”

Thirty Percent Better

When Elena Kagan was under consideration for the high court, she had a surprising advocate: Justice Antonin Scalia, a Reagan appointee and titan of the conservative legal movement.

“I hope he sends us someone smart,” he told David Axelrod, then an adviser to President Barack Obama, at a Washington dinner. “I hope he sends us Elena Kagan.”

At the time, she had zero judicial experience but was already a Supreme Court insider.

And an expert negotiator. As a 12-year-old, when she wanted her synagogue’s first bat mitzvah and a chance to chant Torah on Saturday morning just like the boys, she bargained her way to a partial victory, reading from The Book of Ruth on a Friday instead. As dean of Harvard Law School, she quieted ideological warfare and recruited conservative faculty members. Next, she served as Mr. Obama’s solicitor general, a job nicknamed “the 10th justice” because of its influence with the nine jurists.

Mr. Obama “saw her as a thoughtful strategist,” Mr. Axelrod said in an interview, and Justice Scalia’s comment “added to the president’s impression that she could be a consensus builder.”

The court she joined in 2010 leaned rightward, but not by much, and she devised a way of operating that sometimes allowed her to win. Justice Kagan became a confidante of the chief justice, and so avidly monitored the mood of Justice Anthony Kennedy — a Republican appointee who had become the court’s swing vote — that people who worked with them joked that she knew what he had for breakfast each day. While Justice Stephen Breyer, a fellow liberal also devoted to compromise, was spontaneous, Justice Kagan was tactical. She assessed where to expend capital and what to write off as a lost cause, and took copious notes on the views her colleagues expressed in conference meetings. She did not publicize her maneuvers or gains, lest visibility make her less effective.

People who worked with her describe her attitude as: Let’s make this opinion 30 percent better.

She was more than capable of punching hard — in a 2018 dissent, she slammed the majority as “black-robed rulers overriding citizens’ choices.” But mostly, she pursued concessions and conservative votes, and deferred to internal sensitivity about heated opinions. Disagreement about the law was considered fine. Accusatory language was not, for fear that if justices were rough on the institution or one another, they could undermine public trust. Justice Scalia sometimes hurled darts in dissents, but Justice Kagan was fundamentally an institutionalist and a moderate intent on improving her chances.

“We’re engaged in a collective endeavor of some importance,” she told an audience this summer. “I want to participate and to continue to participate in that endeavor as best I can.”

Sometimes they won by losing.

In 2018, the court sided with a Colorado baker who had refused to create a wedding cake for a same-sex couple. The result looked like a loss for gay rights. But Justices Kagan and Breyer had helped persuade Justice Kennedy to rule on grounds so narrow they neutered the decision, according to people familiar with the proceedings. The baker won — but the results could not be applied to any other case.

Back then, Justice Kagan had a different foil among the liberals: Justice Sonia Sotomayor, who tended to focus more on the impact of the court’s decisions on real people. For years their relationship was filled with friction, confidantes of both jurists said in interviews.

Then, between 2020 and 2022, the liberals lost their fourth vote and the court was remade. Justice Ruth Bader Ginsburg died, Justice Barrett arrived, then Justice Breyer retired. His successor would have to figure out how to do a job that had been sapped of most of its influence.

Speaking Up

The jurist who got the job had two Harvard degrees but also a history of challenging power. In 1990, when Justice Jackson was an undergraduate, she wore black instead of crimson to the Harvard-Yale football game to take a stand against a lack of full-time professors in the Afro-American studies department. “We can embarrass the university in front of the alumni,” she told The Boston Globe at the time.

As a clerk, she worked at a Supreme Court with plenty of Black building workers but where only a handful of Black lawyers had reached the elite legal apprenticeship. Later, she worked as a public defender — a representative of the accused and the shunned.

Her appointment as the first Black female justice was “a refutation of past ignominies, a long-anticipated and highly celebrated national achievement,” she wrote in her memoir. But inside the court, she was the junior justice, assigned to tasks like serving on the cafeteria committee and answering the door to the justices’ private conference room in case of a knock. In those meetings, Justice Jackson spoke only after the others, meaning that unless there was a tie, she had the least influence.

In the public sessions, she has racked up time because “she knows she can’t persuade her colleagues,” said Melissa Murray, a New York University law professor and podcast host. Instead, Ms. Murray said Justice Jackson’s goal is to do “public education from the bench,” reaching people through livestreamed arguments.

As Justice Jackson settled in, Justice Sotomayor and Justice Kagan were drawing closer to one another, according to numerous people who know them both, and also forming ties with Justice Barrett, whose vote they desperately needed. But Justice Jackson and Justice Barrett appeared to chafe against one another. In Corner Post, a 2024 case, the two argued bitterly about how to interpret statutes of limitations. Justice Barrett, writing for the majority, called Justice Jackson’s logic “baffling — indeed, bizarre.” Writing for the liberals, Justice Jackson chose words like “absurdity” and “mess” in her dissent.

The two more senior liberals tried to advise and coordinate with Justice Jackson, people close to all three jurists said in interviews. The new justice sometimes deferred, softening or withdrawing opinions. But she also felt compelled to express frank disagreement even if it caused friction.

“That’s part of my personality. If I disagree, I’m going to say so,” she said at a September talk in London, amid loud applause.

Warm in person, cautious in interviews, she could scorch on the page. When the justices overturned affirmative action in 2023, she accused them of “let‑them‑eat‑cake obliviousness.”

As the senior liberal, Justice Sotomayor assigns the principal dissents, often keeping the most important ones for herself. Justice Jackson has often signed on, but has also picked up her own pen unusually often.

“Forgive me, Justice Sotomayor, but I need to write on this case,” Justice Jackson said in a recent speech, describing what she says to her colleague when she has added her own statement.

In contrast, Justice Kagan recently told an audience that she mostly resists the urge to write separately from her colleagues. “Sometimes I draft dissents and then decide not to do them,” she said. “Like, I draft a dissent and say, ‘Really, is this worth saying? It just seems like a bunch of debaters’ points.’”

After the majority awarded broad immunity from prosecution to Mr. Trump last year, Justice Sotomayor expressed “fear for our democracy.” Justice Jackson went further, writing separately to add that the ruling was a “five-alarm fire that threatens to consume democratic self-governance.”

Her choices have been purposeful, people close to Justice Jackson said. Winning cases was going to be almost impossible, she believed. Any liberal gains exacted through diplomacy would be small and not worth the price of staying silent. In 2023, the justices wiped away the Colorado baker compromise and ruled that the government could not compel a graphic artist to create websites celebrating same-sex weddings.

Outside the court, some liberals cheered her writings. But while historically there was nothing unusual about justices appointed by the same party taking divergent paths, the high stakes, and tiny size of the liberal bloc, now meant greater pressure to be unified.

By the summer of 2024, two years into Justice Jackson’s tenure, Justices Sotomayor and Kagan had grown worried that their newer colleague’s candor and propensity to add her own dissents were diluting the group’s impact, according to their confidantes.

Then Mr. Trump was elected again.

‘Deep Disillusionment’

As the conservative majority awarded him one win after another this year, the liberal split widened and became more public. The decisions, spurred by over 20 emergency applications, have been technically temporary — in place while challenges proceeded through lower courts — but have had far-reaching impacts. The liberal justices have been writing ringing objections, but in different tones.

Justice Sotomayor has been raising alarms but has been devoted to maintaining bonds with conservative colleagues, those close to her say. Justice Kagan has written a few protests as well, particularly of the court’s use of the emergency docket.

Meanwhile, Justice Jackson has aimed straight at the right side of the court, comparing the court’s decisions to Calvinball, a fictional game from a comic strip. “Calvinball has only one rule: There are no fixed rules,” she wrote. “We seem to have two: that one, and this administration always wins.”

All of this came to a head in one case in June. In Trump v. Casa, the court limited the power of lower court judges to issue nationwide rulings, in one stroke diminishing the power of the judiciary to challenge Mr. Trump. Justice Barrett wrote the 6-to-3 majority opinion. Justice Sotomayor pushed back with a full-throated dissent: “The court’s decision is nothing less than an open invitation for the government to bypass the Constitution,” she wrote. Justice Jackson joined that opinion.

But she added an even more dire solo dissent. “Eventually, executive power will become completely uncontainable, and our beloved constitutional Republic will be no more,” she wrote, and signed off “with deep disillusionment, I dissent.” It sounded like a message: I am losing faith in the Supreme Court.

Justice Barrett hit back hard, calling her argument “at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself.”

Watching the strains, liberal court watchers — scholars, members of the Supreme Court bar — have split into factions. Some see Justice Jackson’s stand as courageous and necessary, others want her to be bold but more selective and still others worry she is repelling crucial votes.

Justice Kagan’s recent win on federal agency power was “a testament to her ability to speak to the center of the court and be viewed as a credible partner to think through these issues,” said Don Goodson, executive director of the Institute for Policy Integrity at New York University and a former clerk to Justices Kennedy and John Paul Stevens.

But Leah Litman, also a former clerk to Justice Kennedy, and now a University of Michigan professor and podcast host with Ms. Murray, said she believed that Justice Jackson had the better approach. “What are you preserving capital and good will for at this point?” she asked.

The liberal justices feel stuck, people close to them say. All three see Mr. Trump as a threat to the constitutional order, yet no approach — diplomacy or confrontation — has persuaded the conservative center of the court to regard him that way. Recently, the two senior liberals have used tough language: “Other litigants must follow the rules, but the administration has the Supreme Court on speed dial,” Justice Sotomayor wrote in one Trump-related case. The court has been using its emergency docket “to reshape the nation’s separation of powers,” Justice Kagan wrote in another.

As the court approaches the pivotal Trump questions, Justice Kagan is the one to watch, scholars and people close to her say.

Her tone in recent private conversations has been despondent, they said. Because of her discipline, her words have special potential to critique the court, they said. Before she deleted the most vehement passages from her student loan decision, she circulated them to other justices — a warning, perhaps, of how scathing she could choose to be.

Now, after many years of mulling, she must decide. The problem with waiting to speak frankly is that “over time you normalize what’s going on,” said Pamela Karlan, a professor at Stanford Law School. She said it might be tempting to hoard influence and leverage for a “cataclysmic case.”

But by the time that happens, she said, “it may be too late.”

Julie Tate, Ann E. Marimow and Abbie VanSickle contributed to this report.

Audio produced by Jack D’Isidoro.