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The Supreme Court handed down six cases on Friday, clearing the decks for the blockbusters it will likely release by the end of the month. Although none of its decisions were especially major, the court did issue important decisions about vaping, climate change, and disability discrimination—each of which united Justice Elena Kagan with the six conservatives. Justices Sonia Sotomayor and Ketanji Brown Jackson were left to voice their objections by themselves, and even their opinions revealed disagreements over how to maximize their impact in dissent.

On this week’s episode of Amicus, Dahlia Lithwick and Mark Joseph Stern discussed those three cases, and the remarkable, subtle rift among the liberals that they revealed. A preview of their conversation, below, has been edited and condensed for clarity.

Dahlia Lithwick: Let’s start with FDA v. R.J. Reynolds Vapor Company, a case about where companies can bring suits challenging the FDA’s tobacco regulations. What did the court decide?

Mark Joseph Stern: This case involves a tobacco company challenging the FDA’s refusal to let it sell or market its vapes. The company wanted to forum-shop its case to the U.S. Court of Appeals for the 5th Circuit, because the 5th Circuit consistently rules in favor of the tobacco industry. But Congress had passed a law requiring these challenges to be filed either in the D.C. Circuit or the place where the company is headquartered—here, North Carolina, which is not in the 5th Circuit. So the tobacco companies joined forces with gas stations in Texas and Mississippi that do fall within the 5th Circuit and said: Look, these gas stations want to sell our vapes! Now the 5th Circuit can hear our case!

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On Friday, in a 7–2 opinion by Justice Amy Coney Barrett, the Supreme Court said they could sell their vapes. I think she is deeply wrong to let the tobacco company bootstrap these gas stations onto their suit. This is going to empower the 5th Circuit to continue running interference for the industry whenever the FDA tries to regulate it. Yet Justice Elena Kagan signed onto the ruling in full, leaving only Justices Jackson and Sotomayor to dissent by themselves.

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Next up, we have Diamond Energy v. EPA. This is another 7–2 split, finding that fuel producers have standing to sue the EPA for letting California enact tighter emissions standards than the rest of the country.

And Justice Kagan joined the majority yet again, signing onto Justice Brett Kavanaugh’s opinion for the court. To be clear, the Clean Air Act says that California can impose higher standards for vehicle emissions. The EPA has consistently let the state do so, and the car companies—which are directly affected by its regulations—are not challenging them. Instead, it’s the gasoline companies that claim they’re going to suffer when people buy more efficient vehicles, because then they’ll purchase less gas. Kavanaugh agreed with this attenuated theory of standing, even though Trump’s EPA is about to repeal the waivers that let California impose higher standards. So this case is basically moot, yet the court rushed out a decision so it could deliver a victory to the fossil fuel industry.

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Justice Jackson’s dissent here is kind of channeling Sen. Sheldon Whitehouse. He could have ghostwritten this. She accuses the majority of putting a thumb on the scale for business interests, writing: “This case gives fodder to the unfortunate perception that moneyed interests enjoy an easier road to relief in this court than ordinary citizens.” And she links that favoritism to a decline in confidence in the court. This is the kind of stuff that sends Chief Justice John Roberts into spasms of fury.

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It also shows a split not just between Jackson and Kagan, but also between Jackson and Sotomayor. Justice Sotomayor does not sign onto Jackson’s dissent, which is fascinating, because in some ways it should be Sotomayor bait. She regularly accuses the court of disfavoring the rights of the vulnerable, of criminal defendants, in favor of the more powerful. But she is distinguishing herself here. She is letting KBJ do her own thing, calling out the court in blunt, realpolitik terms, and she herself is saying: I think this is wrong, but I’m not going to make a huge fuss out of it. And I think that kind of difference in strategy comes out in the case we’re about to discuss.

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That brings us to Stanley v. City of Sanford, in which the court ruled against a retired firefighter who wanted to sue her former employer for reducing health care benefits for disabled retirees. This is an unbelievably complicated split. Where is Kagan?

Kagan is yet again with the conservatives. She signed onto a 7–2 decision whose bottom line says that a plaintiff who is already retired, who faces discrimination involving retirement benefits because of her disability, is not a “qualified individual” who can sue under Title I of the Americans with Disabilities Act. This is a really devastating decision because, of course, many forms of disability discrimination come after a person has retired, when they are trying to claim the benefits they rightfully earned. Here, the plaintiff was denied those benefits because of her disability: She was kicked off health care way earlier than she would’ve been because she was disabled. But the Supreme Court said: Too bad. You’re retired. You’re no longer on the job, so you can’t sue under Title I of the ADA.

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There’s a little bit of a silver lining here, though: A smaller majority said there may be a way for other plaintiffs in a similar situation to file different kinds of lawsuits to vindicate their rights. So the court shut off the most obvious avenue for relief, but at least suggests that there may be other avenues in the future. But this particular plaintiff has to lose.

Related From Slate In a Stunning Critique, Ketanji Brown Jackson Nails One of This Court’s Worst Traits Read More

We have Justice Jackson coming out with a flaming sword of a dissent, this time taking direct aim at Justice Gorsuch, and his cynically deployed version of textualism. She writes: “Pure textualism’s refusal to try to understand the text of a statute in the larger context of what Congress sought to achieve turns the interpretive task into a potent weapon for advancing judicial policy preferences. … pure textualism is incessantly malleable—that’s its primary problem—and, indeed, it is certainly somehow always flexible enough to secure the majority’s desired outcome.” So she’s going after Gorsuch for being a hack and deploying hack textualism.

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And it’s deserved in this case. It’s bizarre that Justice Kagan signed onto the majority’s reasoning here because it’s really weak. Gorsuch argues that Congress used present-tense verbs in one sliver of the ADA, which implies that Congress was only protecting people who were actively seeking or holding a job, not retirees. That really does make a mockery of textualism, and I think Justice Jackson is right to call him out.

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I will note that while Justice Sotomayor joined a big chunk of Jackson’s dissent, she did not join the footnote that you just quoted. So Sotomayor expressly refuses to endorse Jackson’s claim that the majority is using textualism to pass off its policy preferences. Instead, Sotomayor seems to have said: I am going to play peacemaker here. And she instead wrote a separate opinion reiterating that the court left room for future plaintiffs arguing a different theory to potentially vindicate their rights. That is a fascinating split screen between Jackson and Sotomayor. I think it reflects their differing approach to being in the minority: Jackson wants to ring the alarm and make sure the public is outraged; Sotomayor is working desperately to draw out a silver lining and make sure this defeat for civil rights isn’t bigger than it needs to be. Meanwhile, Kagan just sides with the majority.

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What’s your theory for why Justice Kagan joined the conservative bloc time and time again on Friday?

I think Kagan is showing the conservatives that she’s reasonable. She’s a compromiser; she’ll sign onto something that she maybe doesn’t believe if it makes the court look more in agreement than it really is. And she may be angling to convince Roberts and Justice Amy Coney Barrett to side with her in some future case when it matters. We can criticize Kagan for these votes, but none of them was decisive for a bad outcome. I think it’s OK for her to offer up these free votes to show she’s got skin in the game, that she’s willing to compromise, as long as she’s getting something out of it.

So now let’s see what that something is. Will we get a half-decent decision in the remaining blockbusters? Or on the shadow docket? Can she convince Barrett and Roberts to limit the damage in a Trump case? It’s way too soon to tell. But I choose to believe that a jurist as utterly brilliant as Justice Kagan would not sign onto some of this stuff if she weren’t getting something good in exchange.