In an insightful post on the Liberty Law blog, law professor John McGinnis reflects on recent remarks by Justice Kagan on which types of cases involve deliberation among the justices at conference and which don’t. McGinnis observes:

Justice Kagan’s remarks are consistent with my view that we have not one but two Supreme Courts. One is a political court, in which the justices play the aristocratic element in a mixed political regime. Today our aristocratic element consists not of landed nobles but the cognitive elite well represented in judiciary by those who graduated from the nation’s best law schools. But like the aristocratic element that Aristotle described long ago, one of its functions is to restrain the democratic element, here represented by the state and federal legislatures. The other is a legal court where the justices act as real lawyers.
In the legal court, justices largely agree on their methods of judicial resolution. Substantial deliberation may thus be mutually profitable. Bankruptcy and the Employment Retirement Security Act are paradigm cases for this court. Generally these cases are decided with a high degree of consensus, if not unanimity. In the political court, many, if not most of the justices, simply have preferences rather than serious methods, and their preferences sharply diverge, now along partisan lines. Given their lack of a common legal language, let alone shared preferences, there is no more reason for deliberation at the Court in these cases than there would be among politicians on a congressional committee. Less reason, in fact, because more often than legislation, cases have binary outcomes and do not allow for compromises that take time to forge.
The only way to go back to one Supreme Court is for the justices to approach constitutional issues–even those that stir passions like same-sex marriage–with the same formal rigor that they do bankruptcy and ERISA. Until that time, we will have two Courts, where the political nature of one is less apparent to the public because of the legal nature of the other.

It is of course proper for the Supreme Court “to restrain the democratic element” when, in a proper case, a democratic enactment is deemed to violate the actual meaning of the Constitution. But McGinnis’s sound complaint is that the justices on the “political court” instead feel free to override enactments that merely offend their policy preferences (or, in the gaseous verbiage of Planned Parenthood v. Casey, their sense of a supposed “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”).