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Monday, July 03, 2023

Kagan and the Chief

Chief Justice Roberts is displeased with some language in Justice Kagan's strong dissent in Biden v. Nebraska. Here is what Kagan said:

From the first page to the last, today’s opinion departs from the demands of judicial restraint.

And that means the Court, by deciding this case, exercises authority it does not have. It violates the Constitution.

And that is a major problem not just for governance, but for democracy too.

Here is Roberts's unhappy comment:

It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary.

Which disturbing opinions (other than Biden v. Nebraska) do you think he had in mind? Could one of them have been his own dissenting opinion Obergefell v. Hodges, in which he wrote:

The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent.

The majority today neglects that restrained conception of the judicial role. It seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question. And it answers that question based not on neutral principles of constitutional law.

Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

If there is any difference in the rhetoric -- other than Roberts's evidently thin skin -- it eludes me.


Posted by Steve Lubet on July 3, 2023 at 04:24 AM | Permalink


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