Elena Kagan Thinks The Supreme Court Gets ‘A Bad Rap, Which Is Either A Lie Or Dangerously Naive

Elena Kagan belongs in the hall of fame of calling out bullshit. Not only can she identify the cynical, shoddy reasoning her conservative colleagues try to pass off as divinely inspired, but she excels at writing brutally incisive takedowns that manage to slam the door on all the disingenuous gameplaying while keeping a plain-talking flow. It’s a devastating combination.

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

Speaking at a Ninth Circuit event yesterday, Justice Kagan told the assembled judges that she thinks “that is a bad rap” when critics point out that the Supreme Court majority is a Trump administration validation machine.

“Is this court very conservative?” she continued. “Does it do a bunch of things that are out of the playbook of the conservative legal movement that I think are deeply wrong? Yes.”

“But,” she added, “is this court kind of a puppet for the current administration? I think definitely not.”

By “definitely not,” Kagan seemingly refers to the decision striking down the Trump administration’s blanket tariffs, shielding the Federal Reserve from Trump’s arbitrary firings, and choosing not to unilaterally erase birthright citizenship from the Constitution. Those decisions did go against the administration, though her comments gloss over the fact that they all only split the majority, two of which implicated competing conservative causes — free trade and not-crashing-the-economy — and the other involved the clear text of the Fourteenth Amendment and over a century of precedent.

“Definitely” is struggling under the adverbial weight. On immigration enforcement, gutting the federal workforce, dismantling the Department of Education, impoundment, whether a person the government has already deported gets a hearing — the administration ran the table. The pattern isn’t a Court that sometimes says no. It’s a Court that says no when Trump threatens the portfolio and yes when he threatens people. If the standard for such a definitive rejection is breaking ranks three times on narrow issues, there exist many more accurate phrasings than “definitely not.” Like, “the exceptions that prove the rule,” for example.

“I don’t see this as a court that is just going to rubber-stamp what the current administration does — quite the opposite,” she said.

If one hoped to give Kagan the benefit of the doubt that she merely intended to say the Court isn’t an automatic win for the administration, “quite the opposite” puts that to rest.

Honestly, “rubber-stamp” is an even better description of this majority than “puppet.” You know who told me that? Elena Kagan. In the shadow docket order that set up the eventual Slaughter merits decision, Kagan wrote, “our emergency docket should never be used, as it has been this year, to permit what our own precedent bars.” Yeah! It’s almost as though the Supreme Court was not just substantively, but procedurally offering the administration fast-tracked results, that the Court wouldn’t even waste time explaining, that dispensed with long-established obstacles. Sort of like someone might, for lack of a better analogy, rubber stamp a request.

According to the Brennan Center’s tally, the administration has gotten at least part of what it wanted in twenty-one of twenty-eight emergency applications since January 2025. That’s not even a speedbump.

Justice Jackson delivered the best description of how the current Supreme Court majority uses its firm devotion to Trump’s agenda and contrived interpretation of the shadow docket when she described it as Calvinball jurisprudence with a twist. The only rule is the rules constantly change until the president wins. Lest you were worried that Justice Kagan would stick to her guns on this clear-eyed assessment of the shadow docket, don’t worry… she just went in front of Congress to testify:

“The reason I think it is probably not appropriate, at least not now, to call it the shadow docket, is because we have done, I think, a better job in the recent past of, where appropriate, and it’s not always appropriate, but where appropriate, explaining ourselves, at least to a moderate degree.”

Fucking when? Point to the shadow docket order that gives an honest explanation of overturning precedent. Because that’s what they’ve been doing. Gorsuch straight up declared that lower court judges continuing to apply existing precedent in the face of unexplained shadow docket orders “defy” the Court. Kagan disagreed with Gorsuch on the substance of that order, but seems to no longer have much to say about the procedural power grab. Even if Kagan believed that the Court is doing a better job explaining these orders — they are demonstrably not — it’s clear that the majority wants lower courts to treat these with the force of fully argued and explained merits decisions.

There are a few reasons why this Court majority has taken that stance, but the most obvious is that it wants to reserve the right to reverse all of these sweeping expansions of power as soon as a Democrat lives in the White House (by then “The White House at Trump Grand Ballroom Presented by Gazprom”). With Supreme Court approval, of course. In any event, the Republican justices love the shadow docket because they can issue orders granting the Trump administration almost every request that the rest of the judiciary are ordered obey… and as soon as a Democrat says, “oh, well then I’ll do the same thing,” the Court will say “silly Dem, we never actually overruled our longstanding precedent!”

If you’re skeptical of this read, just consider the Venn Diagram overlap of justices who confidently declared it near treasonous for presidents to forgive federally backed student loans after the principal is paid off and those who agreed that presidents can just steal congressionally allocated funds if the White House doesn’t like the program.

Does Justice Kagan not get this? Assuming she could point to a marginally better explained shadow docket order, does she not contextualize that within this broader strategy of using an interim process to deliver maximalist gains in the most easily disavowed nature? Does she not wonder why those explanations might be designed for disingenuous flexibility?

Presumably, she knows all these things and chooses to deny it in public. Find yourself a partner who loves you as much as Justice Kagan loves pretending the conservatives on her Court are principled actors. Every few months court watchers find themselves pointing out that Kagan has again adopted some baseless originalist, right-wing compromise as though she’s one 7-2 away from the Republicans seeing Earl Warren on the road to Damascus and embracing the rule of law. They never will. They will collect her vote and chuckle about how they duped the — arguably — smartest person in the room.

But this is where Kagan’s nonsense makes you wonder if her ivory tower background made her dangerously naive. This whole “the Emperor’s clothes are lovely, actually” nonsense isn’t a salon conversation. In a world of credulous news outlets taking “objective journalism” to mean swallowing every ounce of official puffery like hungry wolves, a Supreme Court justice saying this in public turns her into a pawn, providing intellectual cover for a Court issuing lawless decisions through unprecedented and unjustified procedures. Whatever unjustified nuance she’s trying to convey — a nuance which she will absolutely find herself calling out in a dissent next term as ignored or actively breached — she’s throwing logs on a mainstream narrative that marginalizes criticism.

Look at the NY Times headline: “Kagan Says Supreme Court Has 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 court gets a ‘bad rap.'” Volokh Conspiracy sneeringly bragged about “Justice Elena Kagan rejected this common narrative,” referring to the idea that the majority bent over backward for the administration. Do any of these convey to readers that the Supreme Court broke with Trump in a couple outliers? Or do they just salve over the evisceration of the Voting Rights Act?

And you know who calls that decision an evisceration? Elena Kagan, who referred to the Act as eviscerated at the very event we’re talking about.

Kagan’s equivocation carries extra poison to the extent it just turns into open fuel for right-wing attacks on Sotomayor and Jackson. As women of color, they both endure the abuse of an endless parade of racists calling them either “a second-class intellect” or an example of “lesser black women,” diminishing their decisions as unintelligent or overreacting every time they call out what the Court is doing. These remarks put the “bad rap” label on Jackson’s “Calvinball” and Sotomayor’s contextual analysis of Kavanaugh stops (Kagan joined Sotomayor in that dissent, mind you). Justice Kagan just pulled the pin and handed the bigots a live grenade with “see, even Elena Kagan thinks the Supreme Court majority is fine” written on it. Her colleagues have been thrown under the bus and the racial dimension is hard to overlook.

None of the caveats about, “Does it do a bunch of things that are out of the playbook of the conservative legal movement that I think are deeply wrong? Yes,” solves that harm to her colleagues. She gave the right-wing the headline. If she doesn’t understand how that works, then she’s dangerously naive about the impact her words have when they aren’t memorialized in a written opinion.

Justice Kagan, seriously. You’re a fucking Supreme Court justice! The media is going to cover your remarks and turn any daylight into a “see, the Court is really fine” story. Is that 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 he had a regular game with her in college — along with Eliot Spitzer if I recall the story correctly — which might be why she flags out bluffing so well. But she doesn’t seem to be able to pull off the bullshit herself.

Kagan Says Supreme Court Has Stood Up to Trump in Key Cases [NY Times]

Earlier: Elena Kagan Does That Thing Elena Kagan Does Where She Humiliates The Majority
Forget It Ketanji, It’s Chinatown
Supreme Court Just ‘Calvinball Jurisprudence With A Twist,’ Writes Justice Jackson