Kagan asked Feigin to assume the evidence for the triple homicide was strong and to consider what the district court would have done under those circumstances.
‘Your entire case rests on the notion that the evidence just wasn’t strong enough,” she said. ‘How is it the job of the district court to evaluate, much less decide that question?’
But Kavanaugh took issue with that line during his questioning, suggesting the liberal justices had it wrong. The reason the evidence was omitted, he said, was that it was weak so it made no sense to ask the government attorney to make assumptions to the contrary.
He continued: ‘The premise was assumed away…’
‘The premise was assumed away because that was the role of the jury,’ interrupted Kagan.
It was a rare moment of discord. Justices frequently disagree with each other, but they almost avoid any hint that they are criticizing each other