Does Justice Kagan stand alone?

The most surprising part of the Supreme Court’s Thursday order enabling the Trump administration to move forward with sending eight immigrants to South Sudan wasn’t the decision. After all, the court had already sided with the government on deportations to third-party countries in late June; Thursday’s order clarified the reach of that opinion, rather than revealing something truly new.

Instead, the surprise came from Justice Elena Kagan, who, rather than siding with her liberal colleagues, spotlighted her break from them with a brief concurring opinion. 

“I voted to deny the Government’s previous stay application in this case, and I continue to believe that this Court should not have stayed the District Court’s April 18 order enjoining the Government from deporting non-citizens to third countries without notice or a meaningful opportunity to be heard,” Kagan wrote. “But a majority of this Court saw things differently, and I do not see how a district court can compel compliance with an order that this Court has stayed.”

With a single paragraph, Kagan fanned the flames of the debate over her position on the court, which were already burning bright after a term that saw her in the majority more often than five other justices, including Justices Sonia Sotomayor and Ketanji Brown Jackson.

Specifically, according to SCOTUSblog’s Stat Pack for the 2024-25 term, Kagan was in the majority in 83% of all cases and 70% of non-unanimous cases that were resolved with opinions from the court. Whether you’re considering all cases or only the non-unanimous ones, Kagan was more often in the majority than Sotomayor (78% and 62%, respectively), Jackson (72% and 51%), and Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch.

On social media, at least, Kagan is beginning to get the same kind of pushback from more liberal court watchers as Justice Amy Coney Barrett has faced from conservatives.

Most of the gap between Kagan and her liberal colleagues stems from four 7-2 cases in which Kagan sided with the court’s conservative wing.

• In Lackey v. Stinnie, the court limited access to attorney’s fee reimbursements by holding that parties in a civil suit who win a preliminary injunction are not eligible for reimbursement until or unless a court conclusively resolves their claims in their favor. Jackson dissented, joined by Sotomayor. She argued that the court’s opinion “lacks any basis” in the law on reimbursement and “is plainly inconsistent” with that law’s purpose.
• In Advocate Christ Medical Center v. Kennedy, a case about Medicare payments to hospitals, the court held that the enhanced payments that go to hospitals treating large numbers of Medicare patients should be calculated using the number of patients that received supplementary security income benefits from the government during the month they were hospitalized rather than the number of patients who had ever received such benefits. Jackson’s dissenting opinion, joined by Sotomayor, said that the court’s decision will harm the “hospitals serving the neediest among us.”
• In Diamond Alternative Energy LLC v. Environmental Protection Agency, the court held that fuel producers have a legal right to sue the EPA over its approval of regulations put forward by California that aim to decrease fuel emissions, in part by requiring the production of more electric vehicles. Sotomayor and Jackson wrote separate dissents, with Sotomayor raising concerns about a factual dispute in the court of appeals and Jackson arguing that the court would not have taken up the case if the plaintiffs were “less powerful.”  
• In Food and Drug Administration v. R.J. Reynolds Vapor Co., a case about where a lawsuit challenging an FDA decision should be filed, the court held that a lawsuit from e-cigarette retailers regarding the FDA’s denial of R.J. Reynolds Vapor’s application to market e-cigarettes could move forward in the U.S. Court of Appeals for the 5th Circuit, even though that RJR Vapor, which had joined the suit, is based in North Carolina – which is part of the 4th Circuit. Jackson’s dissent, joined by Sotomayor, criticized the majority for making it possible for nearly anyone affected by an FDA decision to challenge it.

Unlike Kagan, Jackson was never the lone liberal in a mixed majority over the course of the term, while Sotomayor was only once – in a 5-4 decision in Feliciano v. Department of Transportation, a case about the rights of civilian reservists called to active duty.

But before you paint Kagan as a defector from the court’s liberal camp, consider how often she stuck with her fellow Democratic appointees. The Stat Pack shows that Kagan is more aligned with Sotomayor and Jackson than she is with any other justice – and more aligned with them than many Republican-appointed justices are with their conservative colleagues.

Kagan agreed with Sotomayor in 92% of the cases resolved with opinions from the court in the 2024-25 term and with Jackson in 89% of those cases. Those percentages are even higher if you look only at closely divided (6-3 or 5-4) cases, where there was 95% agreement between Kagan and Sotomayor and 100% agreement between Kagan and Jackson.

Kagan was on the same side as Sotomayor and Jackson in high-profile battles over nationwide injunctions, a state-level ban on certain medical treatments for transgender children and teens, an age-verification law affecting porn sites, and faith-based opt-outs from public school lessons involving LGBTQ themes. That alignment helps explain why Kagan doesn’t stand out from the other liberal justices if you look only at closely divided cases. Indeed, she was in the majority only 45% of the time in 6-3 or 5-4 decisions, less often than any other justice besides Jackson.

Just one pair of conservative justices – Thomas and Alito – agreed in 100% of the term’s closely divided cases. The next-highest agreement percentage among conservatives in those cases was 80% between Chief Justice John Roberts and Justice Brett Kavanaugh and 80% between Kavanaugh and Barrett.

For Kagan, then, Thursday’s concurrence – and those four 7-2 decisions from the 2024-25 term – are the still the exception, not the rule. She may be closer to the center than Sotomayor and Jackson, but she’s still in the court’s liberal wing.