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Is Justice Kagan Moving Right?

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By George Khoury, Esq. on July 06, 2018 7:00 AM

Some Supreme Court correspondents have suggested that Justice Kagan has been ruling with her conservative colleagues a little bit more frequently, signaling that she is moving more to the right on the political spectrum, or seeking to play the "long-game" to garner support.

If you see these opinions, you might want to think about just skipping over them. Justice Kagan's dissenting opinion in this term's Janus case makes abundantly clear that she's not likely to be part of the conservative majority unless they're deciding the case like she is. In her strongly worded dissent, Justice Kagan calls out the majority, basically calling them the "."

Kagan at Bat

While Slate called out Justice Kagan for voting with the conservative majority in three major cases this past term, Masterpiece Cakeshop, Lucia v. SEC, and Gill v. Whitford, it is important to note that Kagan's vote was not a tiebreaker in any of these cases. In fact, Gill was a unanimous 9 to 0 decision, and both Masterpiece and Lucia were 7 to 2. Also, Kagan was able to author the Lucia opinion, which kept, as some suggested, the conservative majority from overreaching. In the other cases, Kagan issued a concurrence distinguishing why she voted with the majority.

Kagan Moving Forward

Though Justice Kagan may not be as progressive as (the coolest) Justice Sonya Sotomayor, who can make Justice Ginsburg seem rather buttoned up in comparison, she isn't showing signs of switching sides when it comes to the Court's partisan divide.

Justice Kagan has a long career ahead of her, having been appointed less than a decade ago by President Obama, and being less than 60 years old still. Also, given her prior political career as White House Counsel and presidential advisor to President Bill Clinton, it would seem rather unlikely for her to jump ship politically.

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