Why Does Elena Kagan Keep Roasting Brett Kavanaugh?

slate.com
6 min read
standard
The justice's latest opinion may be an ominous sign for Supreme Court's upcoming blockbusters.
The Supreme Court is quiet. Too quiet. It is almost mid-June, and the court has yet to release any blockbuster decisions. What's going on?

The simple answer is also the obvious one: These cases have sharply divided the justices, who are still circulating majority opinions, concurrences, and dissents between chambers, sniping at each other in acid footnotes that belie their public claims of collegiality, civility, and mutual respect. That's nothing new; tempers frequently flair as the court completes its work for the term (usually by late June). This anger often boils over into smaller decisions that don't grab headlines, but provide clues of what's coming down the pike. On Thursday, the Supreme Court released such a decision. And while the outcome is progressive, the opinions themselves hint that the liberal justices are bracing for a wipeout in the coming weeks.

Advertisement

Advertisement

Advertisement

Thursday's decision, Borden v. United States, is not the kind of case that usually grabs headlines. It involves yet another dispute about the Armed Career Criminal Act, or ACCA, a federal law that consumes a shocking amount of the Supreme Court's time. ACCA imposes a 15-year mandatory minimum sentence on people who are found guilty under federal law of illegally possessing a firearm if they were previously convicted of three "violent felonies" under state law. But every state has a different criminal code, and their definitions of a "violent felony" don't map neatly onto ACCA's. The law's "elements clause" defines a "violent felony" as "the use" of "physical force against the person of another." In Borden, the court had to decide whether a "reckless" offense—as opposed to one committed with criminal intent—falls under this definition.

Advertisement

Again: This case is not the stuff of breaking news chyrons. But Justice Elena Kagan drew more attention to Borden than it might have otherwise received by relentlessly owning Justice Brett Kavanaugh at every…
Mark Joseph Stern
Read full article