There is an interesting footnote in one of Kagan’s recent dissents which should be of interest to judicial politics scholars.

Let me set this up for you. The Court in Ramos v. Louisiana held that the Constitution requires unanimous jury verdicts. It was a huge case for criminal procedural rights. The vote was 6-3, with strange bedfellows on the losing side (Kagan, Roberts & Alito). And so now, fast forward, the issue becomes what to do with people already lawfully convicted in states that had previously allowed non-unanimous juries. Does the new decision apply retroactively? The Court in Edwards v. Vannoy just recently said “no.” And all of the conservatives were on one side, and all of the “liberals” on the other (6-3). And so Kagan, it seems, had become converted.

But here is the thing: Kagan authored a dissent that seemed to pout. It was very poorly written and was blatantly crying foul. The conservatives were fudging it, she basically said. In reply to this, Kavanaugh sort of stepped back and said: look, the status quo is much more liberal because of Ramos (and the conservatives being reasonable?). And he noted that Kagan’s original vote (denying Ramos) was much worse off from this sort of perspective than her complaint about fudging retroactivity. After all, isn’t retroactivity a smaller issue than the big substantive victory?

And it is here that Kagan seems to give judicial politics scholars an interesting quote. It is found in her final footnote on the final page, suggesting that it was perhaps a closing insert. She writes:

The majority’s final claim is that it is properly immune from this criticism—that I cannot “turn around and impugn” its ruling—because “criminal defendants as a group are better off under Ramos and today’s decision, taken together, than they would have been if [my] dissenting view had prevailed in Ramos.” Ante, at 19. The suggestion is surprising. It treats judging as scorekeeping—and more, as scorekeeping about how much our decisions, or the aggregate of them, benefit a particular kind of party. I see the matter differently. Judges should take cases one at a time, and do their best in each to apply the relevant legal rules. And when judges err, others should point out where they went astray. No one gets to bank capital for future cases; no one’s past decisions insulate them from criticism. The focus always is, or should be, getting the case before us right.

https://www.supremecourt.gov/opinions/20pdf/19-5807_086c.pdf

Let’s put aside her premise that each case must have integrity — those debates are legion. I’m more interested in her claim that party scorekeeping isn’t de facto relevant to everything SCOTUS. According to the Supreme Court Data Set, Kavanaugh’s liberal rating is higher than many politics scholars predicted. He’s basically a swing-vote conservative similar in aggregate tendency to Roberts, O’Connor and Kennedy. He is therefore what we call an “institutional conservative,” as opposed to the orthodox conservatives who have liberal ratings that are significantly lower (Scalia, Thomas, Rehnquist, Alito). Almost everything we do in judicial politics looks at winners and losers across regime, group or party spectrum. Almost all of us are counting these things.

And so what do we do with Kagan’s claim here? Nothing of course — it’s a red herring. What astute politics scholars should focus upon is KAVANAUGH’s claim, not Kagan’s response. Kavanaugh seems to think that hedging certain bets and throwing the other side a bone every now and then are what makes the institution legitimate.

And I wholeheartedly agree. Swing-voting conservatives are probably more central to the legitimacy of the Court than Liz Cheney/Mitt Romney Republicans are to the legitimacy of the policy branches. The day that the polarized Court really does get here — which it hasn’t — will be the day that the Court isn’t necessary any longer.