Elena Kagan thinks the Supreme Court has ‘a bad reputation, which is either a lie or dangerously naive’ Z News

Elena Kagan belongs in the Bullshit Hall of Fame. Not only can she identify the cynical, shoddy reasoning that her fellow conservatives try to pass off as divinely inspired, but she excels at writing brutally incisive takedowns that manage to slam the door on all disingenuous gameplay while still maintaining a clear flow of language. It’s a devastating combination.

That’s why it’s so annoying when she peddles bullshit herself.

Speaking yesterday at a Ninth Circuit eventJustice Kagan told the assembled justices that she thinks “it’s a bad name” when critics point out that the Supreme Court majority is a validation machine for the Trump administration.

“Is this court very conservative? she continued. “Is this doing a bunch of things that are out of the conservative legal movement’s playbook that I think are deeply flawed? Yes.”

“But,” she added, “is this court some sort of puppet of the current government? I certainly don’t think so.”

By “certainly not,” Kagan is apparently referring to the decision rolling back the Trump administration’s blanket tariffs, protecting the Federal Reserve from Trump’s arbitrary layoffs, and choosing not to unilaterally erase the birthright from the Constitution. These decisions effectively went against the administration, although his comments overlook the fact that they all did nothing but divide the majority, two of them involved competing conservative causes—free trade and not collapsing the economy—and the other involved the plain text of the Fourteenth Amendment and more than a century of precedent.

“Certainly” struggles under the adverbial weight. When it comes to immigration enforcement, cutting the federal workforce, dismantling the Department of Education, impounding, whether someone already deported by the government gets a hearing — the administration has run the table. The model is not that of a court that sometimes says no. This is a Court that says no when Trump threatens the wallet and yes when he threatens people. If the norm for such a definitive rejection is to break ranks three times on specific issues, there are much more precise formulations than “absolutely not.” Like “the exceptions that prove the rule”, for example.

“I don’t see this as a court that would just rubber-stamp what the current administration is doing, quite the contrary,” she said.

While one was hoping to give Kagan the benefit of the doubt because she simply intended to say that the Court is not an automatic victory for the administration, “quite the contrary” puts that aside.

Honestly, “dabbing” is a better description of this majority than “puppet.” Do you know who told me that? Elena Kagan. In the order of the shadow folder that set up the possible Slaughter deserves a decision, Kagan wrote, “our emergency brief should never be used, as has been the case this year, to permit what our own precedent prohibits.” Yeah! It’s almost as if the Supreme Court is not only substantive, but procedurally by offering the administration expedited results, which the Court would not even waste time explaining, which removed long-standing obstacles. Much like someone might, for lack of a better analogy, rubber stamp a request.

According to the Brennan Center countthe administration got at least part of what it wanted in twenty-one of twenty-eight emergency requests since January 2025. That’s not even a speed bump.

Justice Jackson provided the best description of how the current Supreme Court majority uses its strong commitment to the Trump agenda and artificial interpretation of the shadow docket when she described it as Calvinball jurisprudence with a twist. The only rule is that the rules keep changing until the president wins. Lest you worry that Justice Kagan will stick to her positions regarding this clear-eyed assessment of the shadow record, don’t worry… she simply went before Congress to testify:

“The reason I think it’s probably not appropriate, at least not right now, to call it the shadow file is because we’ve done, I think, a better job in the recent past of explaining ourselves, if anything, and it’s not always appropriate, but if anything, explaining ourselves, at least to some extent.”

Fuck, when? Point to the shadow ordinance which gives an honest explanation for the overturning of precedent. Because that’s what they did. Gorsuch directly stated that lower court judges continue to apply existing precedent in the face of unexplained phantom orders “challenge“The Court. Kagan disagreed with Gorsuch on the substance of this order, but no longer appears to have much say on the procedural power grab. Even if Kagan thought the Court was doing a better job of explaining these orders—it clearly is not—it is clear that the majority wants lower courts to treat them with the force of fully argued and explained decisions on the merits.

There are several reasons why this majority of the Court has taken this position, but the most obvious is that it wants to reserve the right to undo all of these radical expansions of power as soon as a Democrat lives in the White House (until then “The White House at the Trump Grand Ballroom presented by Gazprom”). With the approval of the Supreme Court, of course. Either way, Republican judges love the shadow docket because they can issue orders granting the Trump administration almost any request for obedience to the rest of the judiciary… and as soon as a Democrat says, “oh, well, I’ll do the same thing,” the Court will say “silly Democrats, we never In fact overturned our long-standing precedent! »

If you’re skeptical of that reading, just consider the overlapping Venn diagram between justices who confidently said it was almost treacherous for presidents to cancel federally guaranteed student loans once the principal was repaid and those who agreed that presidents can simply steal funds appropriated by Congress if the White House doesn’t like the program.

Does Justice Kagan not understand this? Assuming she can point to a slightly better explained shadow order, doesn’t she contextualize that as part of this broader strategy of using an interim process to achieve maximalist gains in the most easily disavowed nature? Doesn’t she wonder why these explanations could it be designed for spurious flexibility?

Presumably she knows all of these things and chooses to deny it in public. Find yourself a partner who loves you as much as Justice Kagan loves to pretend that the conservatives on her Court are principled actors. Every few months court observers find themselves pointing out that Kagan has once again embraced a baseless originalist and right-wing compromise, as if she is 7 to 2 Republicans seeing Earl Warren on the road to Damascus and embracing the rule of law. They never will. They’ll collect his vote and laugh about how they fooled the – arguably – smartest person in the room.

But this is where Kagan’s nonsense makes you wonder if her ivory tower past made her dangerously naive. This whole “the emperor’s clothes are lovely, actually” nonsense is not parlor conversation. In a world where the gullible media considers “objective journalism” to mean swallowing up every ounce of official nonsense like hungry wolves, a Supreme Court justice saying this in public makes her a pawn, providing intellectual cover for a Court that issues illegal decisions through unprecedented and unwarranted procedures. Either way, it’s unjustified. nuance she tries to convey – a nuance that she absolutely finds herself denouncing dissent next term as being ignored or actively violated – she throws newspapers at a dominant narrative that marginalizes criticism.

Look at it New York Times headline: “Kagan says Supreme Court stood up to Trump in key cases.” ” THE AP wrote“Liberal Justice Elena Kagan says the Supreme Court is not a rubber stamp for Trump.” SCOTUSBlog wrote: “Justice Kagan says the court has a ‘bad reputation.’ » Volokh Conspiracy sneeringly boasted that “Justice Elena Kagan rejected this common narrative,” referring to the idea that the majority was bending over backwards for the administration. Do any of them tell readers that the Supreme Court broke with Trump on a few outlier cases? Or are they content to settle for gutting the Voting Rights Act?

And you know who calls this decision an evisceration? Elena Kagan, who called the law gutted to the very event we are talking about.

Kagan’s equivocation carries additional poison in that it simply becomes fuel for right-wing attacks on Sotomayor and Jackson. As women of color, they both endure abuse from an endless parade of racists calling them either “a second-class intellect” or an example of “underage black women,” downplaying their decisions as unintelligent or overreacting every time they denounce what the Court does. These remarks put the “bad name” label on Jackson’s “Calvinball” and Sotomayor’s contextual analysis of Kavanaugh stops (Kagan joined Sotomayor in this dissent, mind you). Justice Kagan just pulled the pin and handed the fanatics a live grenade with “see, even Elena Kagan thinks the Supreme Court majority is okay” written on it. Her colleagues have been thrown under the bus and the racial dimension is hard to ignore.

None of the caveats regarding the question, “Is this a bunch of stuff out of the conservative legal movement’s playbook that I think is deeply flawed? Yes,” addresses the harm done to his colleagues. She gave the title to the right. If she doesn’t understand how this works, then she is dangerously naive about the impact of her words when they are not recorded in a written opinion.

Judge Kagan, seriously. You’re a fucking Supreme Court justice! The media will cover your remarks and turn any day into a “see, the Court is doing really well” story. Is this what you want? I don’t think so, based on… well, everything else. So, respectfully, get your head in the game.

Kagan is a notoriously good poker player. A friend of mine told me that he played regularly with her in college – with Eliot Spitzer if I remember the story correctly – which might explain why she avoids bluffing so well. But she doesn’t seem to be able to do this shit herself.

Kagan says Supreme Court stood up to Trump in key cases (New York Times)

Earlier: Elena Kagan does what Elena Kagan does when she humiliates the majority
Forget it Ketanji, it’s Chinatown
Supreme Court settles for ‘Calvinball jurisprudence with a twist,’ writes Justice Jackson