The Daily – Episode Summary

Title: The Liberal Justices Aren’t as United as You Might Think
Date: December 10, 2025
Host: Michael Barbaro
Guest/Reporter: Jodi Kantor

Episode Overview

This episode peels back the curtain on the dynamics inside the U.S. Supreme Court’s liberal minority. While the three liberal justices often appear united in opposition to the conservative majority, investigative journalist Jodi Kantor reports that there are deep and growing strategic rifts, particularly between Justices Elena Kagan and Ketanji Brown Jackson. The episode explores how each approaches dissent, coalition-building, and resistance in an era defined by the Court’s rightward turn and the resurgence of Donald Trump’s presidency.

Key Discussion Points & Insights

1. The Changing Supreme Court Landscape (00:36–03:09)

• Kantor’s Reporting Focus:

  • Pull back the curtain on the nine justices’ unseen decision-making at a critical political moment.
  • The Supreme Court is handling major questions about presidential power related to Trump.

• Liberal Justices in the Minority:

  • “The liberal justices... see President Trump as a threat to the constitutional order.”
    — Jodi Kantor [02:29]
  • The left is “badly outnumbered” and looking for ways to mitigate the Court’s conservative drift.

2. Elena Kagan’s Diplomatic Tactics (03:09–11:10)

• Kagan’s Appointment and Approach:

  • Appointed by Obama in 2010, noted for being a diplomatic bridge-builder—even recommended by Justice Scalia, a conservative, for her openness.
  • Kagan’s methodology: build relationships, search for common ground, keep dissent constructive.

• Case Examples:

  • Obama’s Health Care Law (Affordable Care Act):
    • Kagan helped craft coalitions that defended the law, marking clear liberal victories despite the conservative lean. [06:39–07:12]
  • “Winning by Losing”:
    • If victory is unattainable, make the defeat less bad by narrowing decisions.
    • Masterpiece Cakeshop (2018):
      • The decision favored the conservative baker but on narrow, almost meaningless grounds, limiting its impact as precedent.
        — “The result was pretty meaningless. The whole point of the Supreme Court is to set precedents that applies broadly... in this case, it was such a restricted decision... it was a very hollow victory for conservatives.”
        — Jodi Kantor [09:02]

• Kagan’s Restraint:

  • Willingness to soften strong dissents for long-term collegiality.
  • “A slight can last a lifetime.”
    — Jodi Kantor [10:13]

3. The Court’s Rightward Shift and Kagan’s Dilemma (11:10–17:14)

• Impact of RBG’s Death and Barrett’s Arrival:

  • The shift from a 5-4 to a 6-3 conservative majority feels like a “liberal death sentence.”
  • Amy Coney Barrett’s addition completes a “50-year conservative legal revolution,” as catalyzed by Trump.
    — “All of the sudden it is a six three court.”
    — Jodi Kantor [11:46]
  • Conservative majority swiftly overturns Roe v. Wade.

• Kagan’s Strategy Under Pressure:

  • Kagan becomes torn as Barrett sometimes shows independence but rarely on major cases.
  • She begins “agonizing” over whether diplomacy remains effective or if she must take a more confrontational tack.
    — “She’s saying to herself, things are changing... Do I need to get more confrontational?”
    — Jodi Kantor [16:59]

4. The Jackson Era: A New Liberal Voice (19:18–26:27)

• Ketanji Brown Jackson’s Background:

  • Arrives in 2022; first Black woman justice, former public defender, more of an “outsider” than Kagan.

• A New, Assertive Approach:

  • Exceeds her colleagues in airtime during oral arguments.
  • “I am not afraid to use my voice...”
    — Justice Jackson [22:02]
  • Writes separate opinions immediately, in contrast to tradition.
  • Willing to be sharply critical—“on the page she can scorch.”
    • Example: In the affirmative action case, she implies some peers are “clueless about racism.”
      — Jodi Kantor [24:34]

• Writing for History, Not the Majority:

  • Directly addresses the public and future generations in dissent.
  • After Trump’s return, becomes even more vocal:
    • “This court is enabling our collective demise.”
      — Justice Jackson, paraphrased by Jodi Kantor [25:29]

5. Intrapersonal Tension: Kagan vs. Jackson (26:27–29:44)

• Clashing Strategies Create Tension:

  • Jackson’s forceful dissents potentially risk alienating Roberts and Barrett—the very people Kagan needs for even partial victories.
  • Kagan’s approach, “make it 30% better,” is threatened by Jackson’s bluntness.
    • “That is not the path to Kagan’s metaphorical 30% better ruling.”
      — Jodi Kantor [27:17]

• Debate Over Efficacy:

  • Example: The narrow victory in the 2018 cakeshop case was later completely reversed by the conservative majority, fueling Jackson’s argument that incrementalism accomplishes little.
    — “What is the point of pretending that we're gonna get something from this conservative majority?”
    — Michael Barbaro [28:21]
  • Kagan’s supporters counter that those “extra years of protection” still matter.

6. Face-Off: Jackson and Barrett (29:44–31:12)

• Recent Public Clash:

  • In Trump v. CASA: Jackson dissents, warning that executive power will become “completely uncontainable,” essentially rebuking Barrett.
  • Barrett responds sharply, refusing to consider some of Jackson’s points—a rare public showdown between justices.
    — “Justice Barrett... hits back in the opinions.”
    — Jodi Kantor [30:58]

• Both Kagan’s and Jackson’s strategies are showing their limitations as the conservative majority accelerates its agenda.

Notable Quotes & Memorable Moments

• On Kagan’s Philosophy of Compromise:

  • “Let’s make this opinion 30% better.”
    — Anonymous source describing Kagan [07:58]
  • “You have to keep talking, and you have to find ways of, like, readjusting the issue or of convincing each other.”
    — Justice Kagan [08:06]

• On Jackson’s Philosophy of Dissent:

  • “I'm not afraid to use my voice, even in the admissions.”
    — Justice Jackson [22:02]
  • “Eventually executive power will become completely uncontainable, and our beloved constitutional republic will be no more. ... With deep disillusionment, I dissent.”
    — Justice Jackson, Trump v. CASA dissent [30:13]

• On the Broader Stakes:

  • “How will the strategic decisions by both of these justices affect how much power President Trump ultimately gets, and what will that mean for the Court, the country, and the future of our democracy?”
    — Jodi Kantor [32:43]

Timestamps for Major Segments

• 00:36: Introduction to the Supreme Court’s liberal dynamics and the reporting angle.
• 03:09: Breakdown of Kagan’s diplomatic strategy and background.
• 07:12: Examples of “winning by losing” and compromise.
• 11:10: RBG’s death, Barrett’s arrival, and the shift to a 6-3 court.
• 14:07: Kagan’s struggle with new realities and Barrett’s ambivalence over overturning Roe.
• 19:18: Enter Ketanji Brown Jackson—contrasting biography and strategy.
• 22:02: Jackson’s assertive, vocal approach becomes clear.
• 24:34: Early examples of Jackson’s sharp dissents.
• 25:29: Jackson’s public warnings in the Trump era.
• 26:27: Rising tension between Kagan and Jackson and between liberals.
• 29:44: Jackson and Barrett’s public clash in Trump v. CASA.
• 31:37: Reflections on the limits of both strategies and what the future holds.

Conclusion

This episode pulls back the curtain on the fracturing unity among the Supreme Court’s liberals. As the Court swings further right during Trump’s renewed presidency, Kagan’s strategies of diplomatic compromise increasingly clash with Jackson’s unapologetic, public-facing dissents. The stakes are nothing less than the legal boundaries on presidential power and the Court’s own legitimacy going forward. The episode closes with open questions about which strategy holds promise against a relentless conservative tide, and what that will mean for American democracy itself.