Opinion | Supreme Court Justice Elena Kagan’s Remarkable Dissent


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You have probably already heard about the Supreme Court’s decision in Biden v. Nebraska, where a 6-to-3 majority of the court — split along partisan lines — struck down President Biden’s student debt relief plan.

After blowing past an obvious problem of standing — the plaintiff, the state of Missouri, could not establish any injury to itself and had to sue on behalf of a state-created debt servicing company — Chief Justice John Roberts rejected the administration’s argument that the HEROES Act allowed the president to pursue large-scale debt relief.

Roberts did not base his conclusion on the text of the law. Instead, he used the “major questions doctrine,” which says that the court can overrule executive agencies if it believes their actions implicate questions of major political and economic significance that, in its view, require clear congressional direction. For this court, Biden’s student debt relief program was simply too large and too consequential to be allowed to stand.

(I’d be remiss if I did not point out that the main effect of this doctrine — meant to restore lawmaking authority to Congress — is to hand immense discretionary power to unelected judges.)

But I don’t want to discuss Roberts’s majority opinion as much as I do Justice Elena Kagan’s dissent. Kagan wrote something unusual. She didn’t just challenge the chief justice’s reasoning, she questioned whether the court’s decision was even constitutional.

“From the first page to the last, today’s opinion departs from the demands of judicial restraint,” Kagan wrote. “At the behest of a party that has suffered no injury, the majority decides a contested public policy issue properly belonging to the politically accountable branches and the people they represent.”

She continued: “That is a major problem not just for governance, but for democracy too. Congress is of course a democratic institution; it responds, even if imperfectly, to the preferences of American voters. And agency officials, though not themselves elected, serve a President with the broadest of all political constituencies. But this Court? It is, by design, as detached as possible from the body politic. That is why the Court is supposed to stick to its business — to decide only cases and controversies, and to stay away from making this Nation’s policy about subjects like student-loan relief.”

The court, Kagan concluded, “exercises authority it does not have. It violates the Constitution.”

It’s a remarkable statement. To say that the Supreme Court can violate the Constitution is to reject the idea that the court is somehow outside the constitutional system. It is to remind the public that the court is as bound by the Constitution as the other branches, which is to say that it is subject to the same “checks and balances” as the legislature and the executive.

Kagan’s dissent, in other words, is a call for accountability. For Congress, especially, to exercise its authority to discipline the court when it oversteps its bounds.

Democrats may or may not get this particular message. But John Roberts heard it loud and clear. “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,” he wrote in his opinion. “It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.”

For Roberts, the problem isn’t that the Supreme Court is overstepping its bounds, it’s that one of its justices has decided that she’s had enough.

My Tuesday column was on the Supreme Court’s ethics crisis and the relationship between the justices and the conservative legal movement.

If there is an evergreen presence in these stories concerning the court’s ethical entanglement, it is Leonard Leo, one of the longtime leaders of the Federalist Society, a conservative legal organization. Leo helped organize Alito’s fishing trip with Paul Singer; he can be seen (in a painting commissioned for the Texas billionaire Harlan Crow) vacationing with Clarence Thomas; and he was responsible for steering tens of thousands of dollars in consulting fees to Thomas’s wife, Ginni. Last year, Leo turned his influence and ties into a $1.6 billion gift from a single donor to his Marble Freedom Trust — quite possibly the largest political donation in American history.

My Friday column was on Donald Trump and Ron DeSantis’s assault on birthright citizenship.

If birthright citizenship is the constitutional provision that makes a multiracial democracy of equals possible, then it is no wonder that it now lies in the cross hairs of men who lead a movement devoted to unraveling that particular vision of the American republic.

In the latest episode of my podcast with John Ganz, we discussed the movie “The Net” with special guest Josie Duffy Rice.

An (I think) abandoned delivery truck. I took this in Charlottesville using a Yashica twin-lens reflex camera and Kodak film.

I’m inviting friends over for dinner this weekend and for dessert, I plan to serve this cake. I’m a sucker for citrus and I love olive oil cake, so I think this will be good. I’ll probably make a chocolate ganache to go along with the cake as well. Recipe comes from New York Times Cooking.


  • Butter for greasing pan

  • 3 blood oranges

  • 1 cup sugar

  • Buttermilk or plain yogurt

  • 3 large eggs

  • 1¾ cups all-purpose flour

  • 1½ teaspoons baking powder

  • ¼ teaspoon baking soda

  • ¼ teaspoon salt

  • ⅔ cup extra virgin olive oil

  • Whipped cream, for serving, optional


Preheat oven to 350 degrees. Grease a 9-by-5-inch loaf pan. Grate zest from 2 oranges and place in a bowl with sugar. Using your fingers, rub ingredients together until orange zest is evenly distributed in sugar.

Supreme an orange: Cut off bottom and top so fruit is exposed and orange can stand upright on a cutting board. Cut away peel and pith, following curve of fruit with your knife. Cut orange segments out of their connective membranes and let them fall into a bowl. Repeat with another orange. Break up segments with your fingers to about ¼-inch pieces.

Halve remaining orange and squeeze juice into a measuring cup. You will have about ¼ cup or so. Add buttermilk or yogurt to juice until you have ⅔ cup liquid altogether. Pour mixture into bowl with sugar and whisk well. Whisk in eggs.

In another bowl, whisk together flour, baking powder, baking soda and salt. Gently whisk dry ingredients into wet ones. Switch to a spatula and fold in olive oil a little at a time. Fold in pieces of orange segments. Scrape batter into pan and smooth top.

Bake cake for about 55 minutes, or until it is golden and a knife inserted into center comes out clean. Cool on a rack for 5 minutes, then unmold and cool to room temperature right-side up. Serve with whipped cream and honey-blood orange compote, if desired.


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