{"id":165464,"date":"2026-10-21T13:25:36","date_gmt":"2026-10-21T21:25:36","guid":{"rendered":"https:\/\/xira.com\/p\/2026\/10\/21\/even-elena-kagan-is-done-giving-the-supreme-court-majority-the-benefit-of-the-doubt\/"},"modified":"2026-10-21T13:25:36","modified_gmt":"2026-10-21T21:25:36","slug":"even-elena-kagan-is-done-giving-the-supreme-court-majority-the-benefit-of-the-doubt","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2026\/10\/21\/even-elena-kagan-is-done-giving-the-supreme-court-majority-the-benefit-of-the-doubt\/","title":{"rendered":"Even Elena Kagan Is Done Giving The Supreme Court Majority The Benefit Of The Doubt"},"content":{"rendered":"

Justice Elena Kagan is very, very good <\/a>at taking apart conservative bullshit. This is the justice who looked at the majority\u2019s major questions doctrine and labeled it a set of \u201cget-out-of-text-free cards<\/a>,\u201d and whose dissents are the rare Supreme Court opinions people read for fun. But Kagan is also a committed institutionalist<\/a>. She still talks about the Court\u2019s legitimacy as something worth protecting, and she keeps insisting her colleagues are acting in good faith even when the record makes that a stretch. That\u2019s exactly why it should sting when she stands in front of a room of law students two weeks before the midterms and says the conservative majority has broken American democracy.<\/p>\n

Kagan spoke Tuesday at Catholic University\u2019s law school, in conversation with Catholic University law professor J. Joel Alicea, a former clerk to Justice Samuel Alito, so not exactly the home crowd. She didn\u2019t soften the diagnosis, as reported by<\/a> the Associated Press:<\/p>\n

\n

\u201cThe court has kind of blinded itself to the very deleterious effect of their rulings on how the political system works and has created a democracy that does not work as well as it should.\u201d<\/p>\n<\/blockquote>\n

But this is also the same Elena Kagan who told a room of Ninth Circuit judges back in July that calling the Court a Trump validation machine is \u201ca bad rap\u201d<\/a>. She ran that one back Tuesday too, calling<\/a> the rubber-stamp charge a \u201cbum rap,\u201d and pointing to cases where the Court pushed back on Trump: tariffs, birthright citizenship, and mail ballots. So the majority isn\u2019t doing the president\u2019s bidding. It\u2019s just dismantling the democracy that\u2019s supposed to check him\u2026. that\u2019s actually not much better.<\/p>\n

Kagan target list was specific, including decisions gutting the Voting Rights Act, the ones knocking down campaign finance regulations, and the 2019 ruling that declared partisan gerrymandering a political question federal courts can\u2019t touch. On the maps, she drew a straight line from that 2019 ruling to the redistricting frenzy currently reshaping the House:<\/p>\n

\n

\u201cOver the last couple of years especially, both political parties have been engaged in a race to the bottom in terms of doing these partisan gerrymanders, \u2026 making what I think is unfortunately a too polarized country even more so.\u201d<\/p>\n<\/blockquote>\n

On money in politics, she channeled the average voter:<\/p>\n

\n

\u201cThe people of America look around and think that all this money chasing all these political candidates is a nightmare, and they\u2019re right.\u201d<\/p>\n<\/blockquote>\n

Then she went after<\/a> the majority\u2019s powers of observation:<\/p>\n

\n

\u201cThe one place where the court has allowed campaign finance regulation to operate is to prevent quid pro quo corruption, kind of money for favors, and the court never seems to see the opportunities for doing exactly that.\u201d<\/p>\n<\/blockquote>\n

As for why the Court keeps getting it wrong, Kagan\u2019s answer<\/a> was that it comes down to \u201ca kind of lack of the appropriate concern or understanding of the consequences of their decisions.\u201d Translated out of Kagan-ese: the majority doesn\u2019t give a shit happens once its opinions leave the building.<\/p>\n

Kagan\u2019s comments yesterday are far from the first time SCOTUS\u2019s mask has slipped and shown the public the discontent brewing there. This is the Term that opened with the justices spending 170 pages whacking the crap out of each other<\/a> over tariffs. A few weeks later they were trying jokes at oral argument instead<\/a>, which lasted about as long as you\u2019d expect.<\/p>\n

In April, Justice Sonia Sotomayor publicly apologized<\/a> to Justice Brett Kavanaugh after saying he \u201cprobably doesn\u2019t really know any person who works by the hour.\u201d In May, Justice Ketanji Brown Jackson sent Sam Alito raging<\/a> by accusing the majority of an \u201cunprincipled use of power\u201d in its rush to implement Callais<\/em>. Alito, joined by Justices Clarence Thomas and Neil Gorsuch, announced that her dissent \u201clevels charges that cannot go unanswered\u201d and called it \u201ca groundless and utterly irresponsible charge.\u201d And it all comes a year after Justice Amy Coney Barrett announced the majority would not \u201cdwell\u201d on Jackson\u2019s argument<\/a> about universal injunctions, an insult conservatives cheered and then kept trying to relitigate<\/a>.<\/p>\n

Which circles back to Kagan\u2019s most recent comments. Kagan has spent 16 years betting that if she\u2019s reasonable enough, this majority will eventually listen, and on Tuesday, two weeks before an election being fought on maps her colleagues made possible, she sounded like someone who knows how that bet turned out.<\/p>\n

Earlier: <\/strong>Elena Kagan Thinks The Supreme Court Gets \u2018A Bad Rap,\u2019 Which Is Either A Lie Or Dangerously Naive<\/a>
Ketanji Brown Jackson Sends Sam Alito Raging<\/a>
After The Tariffs Meltdown, Supreme Court Justices Try Jokes Instead<\/a>
BREAKING: Supreme Court Justices Hate Each Other Like Poison<\/a>
Jonathan Turley Challenges Justice Jackson To Calvinball In Most Embarrassing Display Yet<\/a>
Forget It Ketanji, It\u2019s Chinatown<\/a>
John Roberts Wants America To Understand That He Does Not Care<\/a><\/p>\n

\n

\"\"<\/p>\n

Kathryn Rubino is a Senior Editor at Above the Law, host of\u00a0The Jabot podcast<\/a>, and co-host of\u00a0Thinking Like A Lawyer<\/a>. AtL tipsters are the best, so please connect with her. Feel free to email\u00a0her<\/a>\u00a0with any tips, questions, or comments and follow her on Twitter\u00a0@Kathryn1<\/a>\u00a0or Bluesky\u00a0@Kathryn1<\/a><\/em><\/strong><\/p>\n

The post Even Elena Kagan Is Done Giving The Supreme Court Majority The Benefit Of The Doubt<\/a> appeared first on Above the Law<\/a>.<\/p>\n

<\/em><\/strong><\/p>\n

Justice Elena Kagan is very, very good <\/a>at taking apart conservative bullshit. This is the justice who looked at the majority\u2019s major questions doctrine and labeled it a set of \u201cget-out-of-text-free cards<\/a>,\u201d and whose dissents are the rare Supreme Court opinions people read for fun. But Kagan is also a committed institutionalist<\/a>. She still talks about the Court\u2019s legitimacy as something worth protecting, and she keeps insisting her colleagues are acting in good faith even when the record makes that a stretch. That\u2019s exactly why it should sting when she stands in front of a room of law students two weeks before the midterms and says the conservative majority has broken American democracy.<\/p>\n

Kagan spoke Tuesday at Catholic University\u2019s law school, in conversation with Catholic University law professor J. Joel Alicea, a former clerk to Justice Samuel Alito, so not exactly the home crowd. She didn\u2019t soften the diagnosis, as reported by<\/a> the Associated Press:<\/p>\n

\n

\u201cThe court has kind of blinded itself to the very deleterious effect of their rulings on how the political system works and has created a democracy that does not work as well as it should.\u201d<\/p>\n<\/blockquote>\n

But this is also the same Elena Kagan who told a room of Ninth Circuit judges back in July that calling the Court a Trump validation machine is \u201ca bad rap\u201d<\/a>. She ran that one back Tuesday too, calling<\/a> the rubber-stamp charge a \u201cbum rap,\u201d and pointing to cases where the Court pushed back on Trump: tariffs, birthright citizenship, and mail ballots. So the majority isn\u2019t doing the president\u2019s bidding. It\u2019s just dismantling the democracy that\u2019s supposed to check him\u2026. that\u2019s actually not much better.<\/p>\n

Kagan target list was specific, including decisions gutting the Voting Rights Act, the ones knocking down campaign finance regulations, and the 2019 ruling that declared partisan gerrymandering a political question federal courts can\u2019t touch. On the maps, she drew a straight line from that 2019 ruling to the redistricting frenzy currently reshaping the House:<\/p>\n

\n

\u201cOver the last couple of years especially, both political parties have been engaged in a race to the bottom in terms of doing these partisan gerrymanders, \u2026 making what I think is unfortunately a too polarized country even more so.\u201d<\/p>\n<\/blockquote>\n

On money in politics, she channeled the average voter:<\/p>\n

\n

\u201cThe people of America look around and think that all this money chasing all these political candidates is a nightmare, and they\u2019re right.\u201d<\/p>\n<\/blockquote>\n

Then she went after<\/a> the majority\u2019s powers of observation:<\/p>\n

\n

\u201cThe one place where the court has allowed campaign finance regulation to operate is to prevent quid pro quo corruption, kind of money for favors, and the court never seems to see the opportunities for doing exactly that.\u201d<\/p>\n<\/blockquote>\n

As for why the Court keeps getting it wrong, Kagan\u2019s answer<\/a> was that it comes down to \u201ca kind of lack of the appropriate concern or understanding of the consequences of their decisions.\u201d Translated out of Kagan-ese: the majority doesn\u2019t give a shit happens once its opinions leave the building.<\/p>\n

Kagan\u2019s comments yesterday are far from the first time SCOTUS\u2019s mask has slipped and shown the public the discontent brewing there. This is the Term that opened with the justices spending 170 pages whacking the crap out of each other<\/a> over tariffs. A few weeks later they were trying jokes at oral argument instead<\/a>, which lasted about as long as you\u2019d expect.<\/p>\n

In April, Justice Sonia Sotomayor publicly apologized<\/a> to Justice Brett Kavanaugh after saying he \u201cprobably doesn\u2019t really know any person who works by the hour.\u201d In May, Justice Ketanji Brown Jackson sent Sam Alito raging<\/a> by accusing the majority of an \u201cunprincipled use of power\u201d in its rush to implement Callais<\/em>. Alito, joined by Justices Clarence Thomas and Neil Gorsuch, announced that her dissent \u201clevels charges that cannot go unanswered\u201d and called it \u201ca groundless and utterly irresponsible charge.\u201d And it all comes a year after Justice Amy Coney Barrett announced the majority would not \u201cdwell\u201d on Jackson\u2019s argument<\/a> about universal injunctions, an insult conservatives cheered and then kept trying to relitigate<\/a>.<\/p>\n

Which circles back to Kagan\u2019s most recent comments. Kagan has spent 16 years betting that if she\u2019s reasonable enough, this majority will eventually listen, and on Tuesday, two weeks before an election being fought on maps her colleagues made possible, she sounded like someone who knows how that bet turned out.<\/p>\n

Earlier: <\/strong>Elena Kagan Thinks The Supreme Court Gets \u2018A Bad Rap,\u2019 Which Is Either A Lie Or Dangerously Naive<\/a>
Ketanji Brown Jackson Sends Sam Alito Raging<\/a>
After The Tariffs Meltdown, Supreme Court Justices Try Jokes Instead<\/a>
BREAKING: Supreme Court Justices Hate Each Other Like Poison<\/a>
Jonathan Turley Challenges Justice Jackson To Calvinball In Most Embarrassing Display Yet<\/a>
Forget It Ketanji, It\u2019s Chinatown<\/a>
John Roberts Wants America To Understand That He Does Not Care<\/a><\/p>\n

\n

\"\"<\/p>\n

Kathryn Rubino is a Senior Editor at Above the Law, host of\u00a0The Jabot podcast<\/a>, and co-host of\u00a0Thinking Like A Lawyer<\/a>. AtL tipsters are the best, so please connect with her. Feel free to email\u00a0her<\/a>\u00a0with any tips, questions, or comments and follow her on Twitter\u00a0@Kathryn1<\/a>\u00a0or Bluesky\u00a0@Kathryn1<\/a><\/em><\/strong><\/p>\n

The post Even Elena Kagan Is Done Giving The Supreme Court Majority The Benefit Of The Doubt<\/a> appeared first on Above the Law<\/a>.<\/p>\n

<\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

Justice Elena Kagan is very, very good at taking apart conservative bullshit. This is the justice who looked at the majority\u2019s major questions doctrine and labeled it a set of \u201cget-out-of-text-free cards,\u201d and whose dissents are the rare Supreme Court opinions people read for fun. But Kagan is also a committed institutionalist. She still talks […]<\/p>\n","protected":false},"author":3,"featured_media":165421,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","footnotes":""},"categories":[16],"tags":[],"class_list":["post-165464","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/165464","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=165464"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/165464\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/165421"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=165464"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=165464"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=165464"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}