{"id":158410,"date":"2026-07-27T07:39:20","date_gmt":"2026-07-27T15:39:20","guid":{"rendered":"https:\/\/xira.com\/p\/2026\/07\/27\/elena-kagan-thinks-the-supreme-court-gets-a-bad-rap-which-is-either-a-lie-or-dangerously-naive\/"},"modified":"2026-07-27T07:39:20","modified_gmt":"2026-07-27T15:39:20","slug":"elena-kagan-thinks-the-supreme-court-gets-a-bad-rap-which-is-either-a-lie-or-dangerously-naive","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2026\/07\/27\/elena-kagan-thinks-the-supreme-court-gets-a-bad-rap-which-is-either-a-lie-or-dangerously-naive\/","title":{"rendered":"Elena Kagan Thinks The Supreme Court Gets \u2018A Bad Rap,\u2019 Which Is Either A Lie Or Dangerously Naive"},"content":{"rendered":"

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<\/a> that manage to slam the door on all the disingenuous gameplaying while keeping a plain-talking flow. It\u2019s a devastating combination.<\/p>\n

Which is why it\u2019s so annoying when she peddles bullshit herself.<\/p>\n

Speaking at a Ninth Circuit event yesterday<\/a>, Justice Kagan told the assembled judges that she thinks \u201cthat is a bad rap\u201d when critics point out that the Supreme Court majority is a Trump administration validation machine. <\/p>\n

\n

\u201cIs this court very conservative?\u201d she continued. \u201cDoes it do a bunch of things that are out of the playbook of the conservative legal movement that I think are deeply wrong? Yes.\u201d<\/p>\n

\u201cBut,\u201d she added, \u201cis this court kind of a puppet for the current administration? I think definitely not.\u201d<\/p>\n<\/blockquote>\n

By \u201cdefinitely not,\u201d Kagan seemingly refers to the decision striking down the Trump administration\u2019s blanket tariffs<\/a>, shielding the Federal Reserve from Trump\u2019s arbitrary firings<\/a>, and choosing not to unilaterally erase birthright citizenship from the Constitution<\/a>. 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 \u2014 free trade and not-crashing-the-economy \u2014 and the other involved the clear text of the Fourteenth Amendment and over a century of precedent. <\/p>\n

\u201cDefinitely\u201d 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 \u2014 the administration ran the table. The pattern isn\u2019t a Court that sometimes says no. It\u2019s 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 \u201cdefinitely not.\u201d Like, \u201cthe exceptions that prove the rule,\u201d for example. <\/p>\n

\n

\u201cI don\u2019t see this as a court that is just going to rubber-stamp what the current administration does \u2014 quite the opposite,\u201d she said.<\/p>\n<\/blockquote>\n

If one hoped to give Kagan the benefit of the doubt that she merely intended to say the Court isn\u2019t an automatic win for the administration, \u201cquite the opposite\u201d puts that to rest. <\/p>\n

Honestly, \u201crubber-stamp\u201d is an even better description of this majority than \u201cpuppet.\u201d You know who told me that? Elena Kagan<\/em>. In the shadow docket order that set up the eventual Slaughter<\/em> merits decision, Kagan wrote, \u201cour emergency docket should never be used, as it has been this year, to permit what our own precedent bars.\u201d Yeah! It\u2019s almost as though the Supreme Court was not just substantively, but procedurally<\/em> offering the administration fast-tracked results, that the Court wouldn\u2019t even waste time explaining, that dispensed with long-established obstacles<\/a>. Sort of like someone might, for lack of a better analogy, rubber stamp<\/em> a request.<\/p>\n

According to the Brennan Center\u2019s tally<\/a>, the administration has gotten at least part of what it wanted in twenty-one of twenty-eight emergency applications since January 2025. That\u2019s not even a speedbump.<\/p>\n

Justice Jackson delivered the best description of how the current Supreme Court majority uses its firm devotion to Trump\u2019s agenda and contrived interpretation of the shadow docket<\/a> when she described it as Calvinball jurisprudence with a twist<\/a>. 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\u2019t worry\u2026 she just went in front of Congress to testify:<\/p>\n

\n

\u201cThe 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\u2019s not always appropriate, but where appropriate, explaining ourselves, at least to a moderate degree.\u201d<\/p>\n<\/blockquote>\n

Fucking when? Point to the shadow docket order that gives an honest explanation of overturning precedent. Because that\u2019s what they\u2019ve been doing. Gorsuch straight up declared that lower court judges continuing to apply existing precedent in the face of unexplained shadow docket orders \u201cdefy<\/a>\u201d 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 \u2014 they are demonstrably not \u2014 it\u2019s clear that the majority wants lower courts to treat these with the force of fully argued and explained merits decisions. <\/p>\n

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 \u201cThe White House at Trump Grand Ballroom Presented by Gazprom\u201d). 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\u2026 and as soon as a Democrat says, \u201coh, well then I\u2019ll do the same thing,\u201d the Court will say \u201csilly Dem, we never actually<\/em> overruled our longstanding precedent!\u201d<\/p>\n

If you\u2019re 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\u2019t like the program. <\/p>\n

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<\/em> might be designed for disingenuous flexibility? <\/p>\n

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<\/a> find themselves pointing out that Kagan has again adopted some baseless originalist, right-wing compromise<\/a> as though she\u2019s 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 \u2014 arguably \u2014 smartest person in the room. <\/p>\n

\"\"
<\/figcaption><\/figure>\n

But this is where Kagan\u2019s nonsense makes you wonder if her ivory tower background made her dangerously naive. This whole \u201cthe Emperor\u2019s clothes are lovely, actually\u201d nonsense isn\u2019t a salon conversation. In a world of credulous news outlets taking \u201cobjective journalism\u201d 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<\/em> she\u2019s trying to convey \u2014 a nuance which she will absolutely<\/em> find herself calling out in a dissent next term as ignored or actively breached \u2014 she\u2019s throwing logs on a mainstream narrative that marginalizes criticism. <\/p>\n

Look at the NY Times<\/em> headline: \u201cKagan Says Supreme Court Has Stood Up to Trump in Key Cases.\u201d The AP wrote<\/a>, \u201cLiberal Justice Elena Kagan says the Supreme Court is not a rubber stamp for Trump.\u201d SCOTUSBlog wrote, \u201cJustice Kagan says court gets a \u2018bad rap.’\u201d Volokh Conspiracy sneeringly bragged about \u201cJustice Elena Kagan rejected this common narrative,\u201d 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?<\/p>\n

And you know who calls that decision an evisceration? Elena Kagan, who referred to the Act as eviscerated at the very event we\u2019re talking about<\/em>.<\/p>\n

Kagan\u2019s 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 \u201ca second-class intellect<\/a>\u201d or an example of \u201clesser black women<\/a>,\u201d diminishing their decisions as unintelligent or overreacting every time they call out what the Court is doing. These remarks put the \u201cbad rap\u201d label on Jackson\u2019s \u201cCalvinball\u201d and Sotomayor\u2019s contextual analysis of Kavanaugh stops<\/a> (Kagan joined Sotomayor in that dissent, mind you). Justice Kagan just pulled the pin and handed the bigots a live grenade with \u201csee, even Elena Kagan thinks the Supreme Court majority is fine\u201d written on it. Her colleagues have been thrown under the bus and the racial dimension is hard to overlook.<\/p>\n

None of the caveats about, \u201cDoes it do a bunch of things that are out of the playbook of the conservative legal movement that I think are deeply wrong? Yes,\u201d solves that harm to her colleagues. She gave the right-wing the headline. If she doesn\u2019t understand how that works, then she\u2019s dangerously naive about the impact her words have when they aren\u2019t memorialized in a written opinion.<\/p>\n

Justice Kagan, seriously. You\u2019re a fucking Supreme Court justice! The media is going to cover your remarks and turn any daylight into a \u201csee, the Court is really fine\u201d story. Is that what you want? I don\u2019t think so based on\u2026 well, everything else. So, respectfully, get your head in the game.<\/p>\n

Kagan is a notoriously good poker player<\/a>. A friend of mine told me he had a regular game with her in college \u2014 along with Eliot Spitzer if I recall the story correctly \u2014 which might be why she flags out bluffing so well. But she doesn\u2019t seem to be able to pull off the bullshit herself.<\/p>\n

Kagan Says Supreme Court Has Stood Up to Trump in Key Cases<\/a> [NY Times]<\/p>\n

Earlier<\/strong>: Elena Kagan Does That Thing Elena Kagan Does Where She Humiliates The Majority<\/a>
Forget It Ketanji, It\u2019s Chinatown<\/a>
Supreme Court Just \u2018Calvinball Jurisprudence With A Twist,\u2019 Writes Justice Jackson<\/a><\/p>\n

\n

The post Elena Kagan Thinks The Supreme Court Gets \u2018A Bad Rap,\u2019 Which Is Either A Lie Or Dangerously Naive<\/a> appeared first on Above the Law<\/a>.<\/p>\n

\"\"
\n\t\t\t\t\t\t\t(Photo by Tyler M. Andrews\/The Washington Post via Getty Images)\t\t\t\t\t\t<\/figcaption><\/figure>\n

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<\/a> that manage to slam the door on all the disingenuous gameplaying while keeping a plain-talking flow. It\u2019s a devastating combination.<\/p>\n

Which is why it\u2019s so annoying when she peddles bullshit herself.<\/p>\n

Speaking at a Ninth Circuit event yesterday<\/a>, Justice Kagan told the assembled judges that she thinks \u201cthat is a bad rap\u201d when critics point out that the Supreme Court majority is a Trump administration validation machine. <\/p>\n

\n

\u201cIs this court very conservative?\u201d she continued. \u201cDoes it do a bunch of things that are out of the playbook of the conservative legal movement that I think are deeply wrong? Yes.\u201d<\/p>\n

\u201cBut,\u201d she added, \u201cis this court kind of a puppet for the current administration? I think definitely not.\u201d<\/p>\n<\/blockquote>\n

By \u201cdefinitely not,\u201d Kagan seemingly refers to the decision striking down the Trump administration\u2019s blanket tariffs<\/a>, shielding the Federal Reserve from Trump\u2019s arbitrary firings<\/a>, and choosing not to unilaterally erase birthright citizenship from the Constitution<\/a>. 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 \u2014 free trade and not-crashing-the-economy \u2014 and the other involved the clear text of the Fourteenth Amendment and over a century of precedent. <\/p>\n

\u201cDefinitely\u201d 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 \u2014 the administration ran the table. The pattern isn\u2019t a Court that sometimes says no. It\u2019s 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 \u201cdefinitely not.\u201d Like, \u201cthe exceptions that prove the rule,\u201d for example. <\/p>\n

\n

\u201cI don\u2019t see this as a court that is just going to rubber-stamp what the current administration does \u2014 quite the opposite,\u201d she said.<\/p>\n<\/blockquote>\n

If one hoped to give Kagan the benefit of the doubt that she merely intended to say the Court isn\u2019t an automatic win for the administration, \u201cquite the opposite\u201d puts that to rest. <\/p>\n

Honestly, \u201crubber-stamp\u201d is an even better description of this majority than \u201cpuppet.\u201d You know who told me that? Elena Kagan<\/em>. In the shadow docket order that set up the eventual Slaughter<\/em> merits decision, Kagan wrote, \u201cour emergency docket should never be used, as it has been this year, to permit what our own precedent bars.\u201d Yeah! It\u2019s almost as though the Supreme Court was not just substantively, but procedurally<\/em> offering the administration fast-tracked results, that the Court wouldn\u2019t even waste time explaining, that dispensed with long-established obstacles<\/a>. Sort of like someone might, for lack of a better analogy, rubber stamp<\/em> a request.<\/p>\n

According to the Brennan Center\u2019s tally<\/a>, the administration has gotten at least part of what it wanted in twenty-one of twenty-eight emergency applications since January 2025. That\u2019s not even a speedbump.<\/p>\n

Justice Jackson delivered the best description of how the current Supreme Court majority uses its firm devotion to Trump\u2019s agenda and contrived interpretation of the shadow docket<\/a> when she described it as Calvinball jurisprudence with a twist<\/a>. 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\u2019t worry\u2026 she just went in front of Congress to testify:<\/p>\n

\n

\u201cThe 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\u2019s not always appropriate, but where appropriate, explaining ourselves, at least to a moderate degree.\u201d<\/p>\n<\/blockquote>\n

Fucking when? Point to the shadow docket order that gives an honest explanation of overturning precedent. Because that\u2019s what they\u2019ve been doing. Gorsuch straight up declared that lower court judges continuing to apply existing precedent in the face of unexplained shadow docket orders \u201cdefy<\/a>\u201d 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 \u2014 they are demonstrably not \u2014 it\u2019s clear that the majority wants lower courts to treat these with the force of fully argued and explained merits decisions. <\/p>\n

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 \u201cThe White House at Trump Grand Ballroom Presented by Gazprom\u201d). 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\u2026 and as soon as a Democrat says, \u201coh, well then I\u2019ll do the same thing,\u201d the Court will say \u201csilly Dem, we never actually<\/em> overruled our longstanding precedent!\u201d<\/p>\n

If you\u2019re 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\u2019t like the program. <\/p>\n

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<\/em> might be designed for disingenuous flexibility? <\/p>\n

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<\/a> find themselves pointing out that Kagan has again adopted some baseless originalist, right-wing compromise<\/a> as though she\u2019s 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 \u2014 arguably \u2014 smartest person in the room. <\/p>\n

\"\"
<\/figcaption><\/figure>\n

But this is where Kagan\u2019s nonsense makes you wonder if her ivory tower background made her dangerously naive. This whole \u201cthe Emperor\u2019s clothes are lovely, actually\u201d nonsense isn\u2019t a salon conversation. In a world of credulous news outlets taking \u201cobjective journalism\u201d 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<\/em> she\u2019s trying to convey \u2014 a nuance which she will absolutely<\/em> find herself calling out in a dissent next term as ignored or actively breached \u2014 she\u2019s throwing logs on a mainstream narrative that marginalizes criticism. <\/p>\n

Look at the NY Times<\/em> headline: \u201cKagan Says Supreme Court Has Stood Up to Trump in Key Cases.\u201d The AP wrote<\/a>, \u201cLiberal Justice Elena Kagan says the Supreme Court is not a rubber stamp for Trump.\u201d SCOTUSBlog wrote, \u201cJustice Kagan says court gets a \u2018bad rap.’\u201d Volokh Conspiracy sneeringly bragged about \u201cJustice Elena Kagan rejected this common narrative,\u201d 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?<\/p>\n

And you know who calls that decision an evisceration? Elena Kagan, who referred to the Act as eviscerated at the very event we\u2019re talking about<\/em>.<\/p>\n

Kagan\u2019s 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 \u201ca second-class intellect<\/a>\u201d or an example of \u201clesser black women<\/a>,\u201d diminishing their decisions as unintelligent or overreacting every time they call out what the Court is doing. These remarks put the \u201cbad rap\u201d label on Jackson\u2019s \u201cCalvinball\u201d and Sotomayor\u2019s contextual analysis of Kavanaugh stops<\/a> (Kagan joined Sotomayor in that dissent, mind you). Justice Kagan just pulled the pin and handed the bigots a live grenade with \u201csee, even Elena Kagan thinks the Supreme Court majority is fine\u201d written on it. Her colleagues have been thrown under the bus and the racial dimension is hard to overlook.<\/p>\n

None of the caveats about, \u201cDoes it do a bunch of things that are out of the playbook of the conservative legal movement that I think are deeply wrong? Yes,\u201d solves that harm to her colleagues. She gave the right-wing the headline. If she doesn\u2019t understand how that works, then she\u2019s dangerously naive about the impact her words have when they aren\u2019t memorialized in a written opinion.<\/p>\n

Justice Kagan, seriously. You\u2019re a fucking Supreme Court justice! The media is going to cover your remarks and turn any daylight into a \u201csee, the Court is really fine\u201d story. Is that what you want? I don\u2019t think so based on\u2026 well, everything else. So, respectfully, get your head in the game.<\/p>\n

Kagan is a notoriously good poker player<\/a>. A friend of mine told me he had a regular game with her in college \u2014 along with Eliot Spitzer if I recall the story correctly \u2014 which might be why she flags out bluffing so well. But she doesn\u2019t seem to be able to pull off the bullshit herself.<\/p>\n

Kagan Says Supreme Court Has Stood Up to Trump in Key Cases<\/a> [NY Times]<\/p>\n

Earlier<\/strong>: Elena Kagan Does That Thing Elena Kagan Does Where She Humiliates The Majority<\/a>
Forget It Ketanji, It\u2019s Chinatown<\/a>
Supreme Court Just \u2018Calvinball Jurisprudence With A Twist,\u2019 Writes Justice Jackson<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

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. […]<\/p>\n","protected":false},"author":3,"featured_media":158195,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-158410","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2026\/07\/Kagan-IBZVuX.jpg?fit=500%2C750&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/158410","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=158410"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/158410\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/158195"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=158410"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=158410"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=158410"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}