Summary
Overview
The Daily examines growing tensions among the Supreme Court's three liberal justices over how to counter the conservative majority's dominance. Reporter Jody Cantor reveals the stark philosophical divide between Justice Elena Kagan's diplomatic, consensus-building approach and Justice Ketanji Brown Jackson's confrontational strategy of public warnings, as both justices struggle to find effective ways to resist the court's rightward shift under Trump's presidency.
The Court's Power Struggle Under Trump
The episode opens by framing the Supreme Court's critical role in determining President Trump's executive power during his second term. The conservative majority is deciding fundamental questions about Trump's authority to fire officials, defund agencies, end birthright citizenship, and implement tariffs. Liberal justices, badly outnumbered, view Trump as a threat to constitutional order but are deeply divided on how to resist this transformation.
- The Supreme Court is determining the contours of Trump's presidential power, including his ability to fire officials, defund agencies, and end birthright citizenship
- Liberal justices are badly outnumbered and see President Trump as a threat to the constitutional order
- The liberal wing is split on the best strategy to mitigate the court's rightward lurch
" The court is literally looking into almost all those questions. They're determining the contours of his power. "
Elena Kagan's Diplomatic Strategy
Justice Kagan arrived at the court in 2010 with a reputation as a strategic diplomat, specifically recommended by conservative Justice Antonin Scalia. On a 5-4 court where outcomes were still uncertain, she developed a methodology focused on building relationships, finding common ground, and winning by making losses less severe. Her approach yielded victories in preserving Obamacare and narrowing conservative wins in cases like Masterpiece Cakeshop.
- Kagan was recommended to President Obama by conservative Justice Antonin Scalia as someone smart who could be a good diplomat
- She developed a strategy of forming relationships with conservatives, particularly Chief Justice Roberts and Justice Kennedy, even tracking Kennedy's moods and concerns closely
- Kagan helped build coalitions that saved Obamacare multiple times when its survival was uncertain
- She practiced 'winning by losing' - making conservative opinions 30 percent better by narrowing their scope and limiting precedent
- In Masterpiece Cakeshop, she helped ensure the decision was so narrow it barely applied to other cases, creating a hollow victory for conservatives
- Kagan would sometimes soften her dissents, even removing lines that went hard after the chief justice to preserve relationships
" She knew what he had for breakfast every morning. "
" A slight can last a lifetime. "
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