In 2011, Ronald Dworkin wrote in The New York Review , https://www.nybooks.com/articles/2011/05/26/courts-embarrassingly-bad-decisions/ about the intellectual dishonesty of several recent decisions by Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas, and Samuel Alito. Dworkin is a major figure in American Jurisprudence, unlike most of the Supreme Court Justices, whose backgrounds are quite ordinary. According to a survey in The Journal of Legal Studies, Dworkin was the second most-cited American legal scholar of the twentieth century. After his death, the Harvard legal scholar Cass Sunstein said Dworkin was “one of the most important legal philosophers of the last 100 years.”
Dworkin found it unacceptable for a judge to decide a case based on an agenda rather than the issues and law in a case:
So if a justice is disposed to advance [certain] goals through his decisions, he must invent arguments that disguise rather than exhibit his actual motivating convictions. These are likely to be artificial and therefore bad arguments.
Unfortunately, today many judges disguise rather than exhibit their actual motivating convictions. It is extremely sad when such a judge sits on the US Supreme Court.
In an article titled “Elena Kagan Has Had Enough of Brett Kavanaugh’s Judicial ‘Scorekeeping’” by Mark Joseph Stern, https://slate.com/news-and-politics/2021/05/edwards-vannoy-kagan-kavanaugh-scorekeeping.html Brett Kavanaugh’s bad arguments were laid bare as follows:
Last year, the Supreme Court issued a landmark decision in Ramos v. Louisiana, prohibiting nonunanimous convictions of criminal defendants. Under the Constitution, the court declared, a split jury verdict is “no verdict at all.” On Monday, however, the court walked back this declaration. In Edwards v. Vannoy, the conservative majority held that Ramos does not apply retroactively—that is, to defendants who have already been convicted by split juries. The court then took the extraordinary step of overturning precedent that had allowed retroactive application of new decisions. No party asked the Supreme Court to reverse this precedent; the question was not briefed or argued. But Justice Brett Kavanaugh’s majority opinion reached out and grabbed it anyway, slamming the courthouse door on convicted defendants seeking the benefit of a new Supreme Court decision.
Kavanaugh’s overreach drew a sharp dissent from Justice Elena Kagan. The justice also responded to Kavanaugh’s charge that she is a hypocrite, criticizing his cynical view of “judging as scorekeeping.” It appears that Kagan is losing patience with Kavanaugh’s efforts to “insulate” himself from criticism with rhetoric that obfuscates the cruel consequences of his decisions.
Since joining the bench, Kavanaugh has sought to frame himself as an honest broker who empathizes with the parties he rules against. In Bostock v. Clayton County, he spent 27 pages explaining why the Civil Rights Act does not protect LGBTQ employees but closed by praising the “exhibited extraordinary vision, tenacity, and grit” of gay Americans. In the peace cross case, Kavanaugh voted to uphold a huge cross on public land while expressing his “deep respect for the plaintiffs’ sincere objections,” as well as their “distress and alienation.” In the DACA case, Kavanaugh empathized with Dreamers who “live, go to school, and work here with uncertainty about their futures,” then voted to let them be deported. And last month, in Jones v. Mississippi, he restored juvenile life without parole while highlighting “moral and policy arguments” for the early release of juvenile defendants that can be presented “to the state officials authorized to act on them.”
Justice Kagan says Kavanaugh is being intellectually dishonest.
Kagan’s dissent in Edwards explains Kavanaugh is trying to “bank capital” by flaunting his empathy, as if he can mitigate the unjust effects of his most conservative opinions. His deep concern for the losing party should offset the actual ramifications of his actions. When he supports a liberal outcome, even better: He can defend himself against future charges of callousness by pointing to his past votes. In doing so, Kavanaugh seeks to “insulate” himself from criticism when he writes a decision like Edwards, which will keep people locked up on the basis of “no verdict at all.”
In Edwards, Justice Kagan’s dissent explained how Kavanaugh’s decision was an attack on precedent. “The majority gives only the sketchiest of reasons for reversing Teague’s watershed exception,” Kagan wrote. “Seldom has this court so casually, so off-handedly, tossed aside precedent.” And it did so even though “no one here asked us to.” The result is fundamentally unfair: Thousands of people will remain behind bars, some for life, because they happened to exhaust their direct appeals before Ramos came down.
Kavanaugh, stung by the criticism, responded by accusing Kagan of posturing. “It is of course fair for a dissent to vigorously critique the court’s analysis,” he scolded. “But it is another thing altogether to dissent in Ramos and then to turn around and impugn today’s majority for supposedly shortchanging criminal defendants.” Kavanaugh wrote that “criminal defendants as a group are better off under Ramos and today’s decision, taken together, than they would have been if Justice Kagan’s dissenting view had prevailed in Ramos.”
In her final footnote, Kagan responded to this charge. Kavanaugh’s claim that he is “properly immune from criticism” because of Kagan’s position in Ramos “is surprising,” she wrote. She went on:
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.