How has Justice Kagan been a disappointment?

[Blue3]

How has Justice Kagan been a disappointment?

I know many people feel this way, especially comparing her to Sotomayor or previous justices.

I also remember hearing details about some cases with her that disappointed me, but can't personally remember them.

But I know overall that's been the sentiment behind her. At least when comparing her to others, like I said.

So, how?

[Skill and Chance]

There was a major expectation that she could be a dealmaker negotiating with the conservatives to reach intermediate outcomes.  It really hasn't worked on anyone but Roberts about half the time.  Maybe Gorsuch, but I would argue his surprise votes are organic based on idiosyncratic views.  Base liberals don't feel like they got anything in return for her moderation/textualism.

[David Hume]

To my recollection, she never provided the 5th vote for the conservatives, so liberals should be happy about her.

[Amenhotep Bakari-Sellers]

The D's were supposed to have a 5/4 Crt after 2016 but Hillary lost

[Mr. Reactionary]

I like her even if i disagree with her.

[H.E. VOLODYMYR ZELENKSYY]

To my recollection, she never provided the 5th vote for the conservatives, so liberals should be happy about her.

I think it’s happened on a few occasions, although not since RBG’s death.

[David Hume]

To my recollection, she never provided the 5th vote for the conservatives, so liberals should be happy about her.

I think it’s happened on a few occasions, although not since RBG’s death.

Could you specify any of them?

[politicallefty]

I can only think of her concurrence in NFIB v. Sebelius where she agreed with the Court that the Medicaid expansion should be optional.

[Mr. Reactionary]

I can only think of her concurrence in NFIB v. Sebelius where she agreed with the Court that the Medicaid expansion should be optional.

She had a partial concurrence IIRC in the Hobby Lobby case on the grounds that a kosher deli clearly is a business with a religious character so the argument that businesses couldnt have a religious character was incorrect.

[brucejoel99]

I can only think of her concurrence in NFIB v. Sebelius where she agreed with the Court that the Medicaid expansion should be optional.

Tbf, Breyer/Kagan agreeing to leave it up to the states was apparently the price that they paid in order to keep Roberts' vote on otherwise upholding Medicaid expansion.

[David Hume]

I can only think of her concurrence in NFIB v. Sebelius where she agreed with the Court that the Medicaid expansion should be optional.

Tbf, Breyer/Kagan agreeing to leave it up to the states was apparently the price that they paid in order to keep Roberts' vote on otherwise upholding Medicaid expansion.

In neither of these two was her vote the deciding fifth vote.

[politicallefty]

I can only think of her concurrence in NFIB v. Sebelius where she agreed with the Court that the Medicaid expansion should be optional.

She had a partial concurrence IIRC in the Hobby Lobby case on the grounds that a kosher deli clearly is a business with a religious character so the argument that businesses couldnt have a religious character was incorrect.

I'm not aware of that case. I looked at the major Hobby Lobby case and didn't see a Kagan concurrence. Could you point me to the case you mentioned?

I can only think of her concurrence in NFIB v. Sebelius where she agreed with the Court that the Medicaid expansion should be optional.

Tbf, Breyer/Kagan agreeing to leave it up to the states was apparently the price that they paid in order to keep Roberts' vote on otherwise upholding Medicaid expansion.

Was that seriously part of the deal to get Roberts to uphold the law? I've read some of the accounts from that case, but I've never read that.

[brucejoel99]

I can only think of her concurrence in NFIB v. Sebelius where she agreed with the Court that the Medicaid expansion should be optional.

Tbf, Breyer/Kagan agreeing to leave it up to the states was apparently the price that they paid in order to keep Roberts' vote on otherwise upholding Medicaid expansion.

In neither of these two was her vote the deciding fifth vote.

I can only think of her concurrence in NFIB v. Sebelius where she agreed with the Court that the Medicaid expansion should be optional.

Tbf, Breyer/Kagan agreeing to leave it up to the states was apparently the price that they paid in order to keep Roberts' vote on otherwise upholding Medicaid expansion.

Was that seriously part of the deal to get Roberts to uphold the law? I've read some of the accounts from that case, but I've never read that.

My b, Breyer & Kagan originally voted to fully uphold Medicaid expansion in its entirety, but then met Roberts partway & joined him & the conservatives in partly holding the expansion unconstitutional in order to secure Roberts' vote to uphold the individual mandate.

[Mr. Reactionary]

I can only think of her concurrence in NFIB v. Sebelius where she agreed with the Court that the Medicaid expansion should be optional.

She had a partial concurrence IIRC in the Hobby Lobby case on the grounds that a kosher deli clearly is a business with a religious character so the argument that businesses couldnt have a religious character was incorrect.

I'm not aware of that case. I looked at the major Hobby Lobby case and didn't see a Kagan concurrence. Could you point me to the case you mentioned?

https://www.nationalreview.com/bench-memos/thinking-their-uteruses-part-1-ed-whelan/

Looks like from this article she and Breyer didnt join the RBG dissent in Hobby Lobby. Her comment on kosher delis must have been during oral arguments.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

I looked at the oyez.org transcript for the Hobby Lobby oral arguments and it has Alito and the two attorneys (Donald Verrilli and Paul Clement) discussing Gallagher v. Crown Kosher, then the Breyer and Kagan dissent that departs from the Ginsburg dissent in refusing to reach the question of whether corporations can have a religious character. So Breyer and Kagan implicitly agree that they can but don't explicitly say so, at least not in that particular case. And indeed, they don't have to, since the Gallagher precedent supports the liberal justices' position anyway: the kosher supermarket was found not to have had its rights violated by the Massachusetts blue law despite being religious in character.

[Amenhotep Bakari-Sellers]

There is no Liberal majority on the Crr

[Kahane's Grave Is A Gender-Neutral Bathroom]

Because she's Jewish, and the far-left hates Jews.

[Fuzzy Bear]

To my recollection, she never provided the 5th vote for the conservatives, so liberals should be happy about her.

You'd think this would be enough.

[David Hume]

To my recollection, she never provided the 5th vote for the conservatives, so liberals should be happy about her.

You'd think this would be enough.

Why not? Even Thomas had been the 5th vote for liberals. Alito is probably the only one in HISTORY who has not done so, if we don't count Rehnquist's strategic votes.

[Fuzzy Bear]

To my recollection, she never provided the 5th vote for the conservatives, so liberals should be happy about her.

You'd think this would be enough.

Why not? Even Thomas had been the 5th vote for liberals. Alito is probably the only one in HISTORY who has not done so, if we don't count Rehnquist's strategic votes.

I never thought that people were "disappointed" in Kagan on the Left.  She's not a brilliant jurist, but neither, really, was William Brennan.  There were Justices on the Left who were Liberal Heroes (William O. Douglas and Thurgood Marshall come to mind) that were far from outstanding jurists.  (Marshall was not a particularly strong jurist outside of Civil Rights; he tended to follow Brennan on everything outside of the Civil Rights cases.  Douglas was a guy who, according to Bob Woodward in The Brethren, often failed to pull his share of the weight but contributed to his share of the conflict.)  I don't know what the inside story is on Kagan, but there are a number of Justices whose legacy is the consensus of the Court, of holding a Consensus together.  This is especially true in times when the CHIEF Justice is in the minority faction on the Court, for it is then that the Senior Justice in the majority of a case assigns out the opinion to be written.