Elena Kagan finally did something last month that she had yet to do in 16 years on the Supreme Court: She dissented all by herself. In an opinion piece for the Washington Post, law professors Grant Christensen and Anne Mullins explain why her solo stand in Havana Docks Corp. v. Royal Caribbean Cruises matters, and what it reveals about her judicial identity. They also lay out the context: Lone dissents are rare—fewer than 1 in 11 Supreme Court cases since 2000—and they’re usually written by justices more willing to buck the institution than Kagan, a self-styled institutionalist who prizes consensus.
The authors place Kagan’s move in a long line of solitary opinions that later reshaped the law, including John Harlan’s notable one in Plessy v. Ferguson in 1896, in which he insisted the Constitution was “color-blind”—a view upheld decades later in Brown v. Board of Education. The issue in Havana Docks gets a little weedy. Kagan accuses the majority of flubbing basic property law by focusing on the “spatial” (the physical docks) and ignoring the “temporal” (the fact that Havana Docks’ right to use them was set to expire in 2004). “This is not a fiery dissent but a pedagogical one,” write the authors. It’s “less an act of defiance than of preservation for the judicial principle she values. Perhaps one day, the Supreme Court will agree.” Read the full piece.