Justice Kagan Can See Two Things At Once

Justice Kagan recently made widely reported remarks at the Ninth Circuit judicial conference. Combining quotes reported by the AP and Politico, it appears that Justice Kagan made essentially the following remarks:

Is this court very conservative? Does it do a bunch of things that are out of the playbook of the conservative legal movement that I think are deeply wrong? You know, yes. But is this court the kind of puppet for the current administration? I think definitely not.

I don’t see this as a court that is just like, ‘We’re just going to rubber stamp what the current administration does.’ You know, quite the opposite. I think that that is a bad rap.

To my mind, this is exactly the right way for someone who is left of center to evaluate and criticize the Supreme Court. To wit: “Two different things are true: (i) the Supreme Court is very conservative, and (ii) the Court, in tandem with the rest of the federal judiciary, has substantially checked the Trump Administration.”

I have suggested that many people have trouble “seeing two things at once” in this context. It is often easier to flatten this Court or render it unidimensional, rather than grapple with its tensions and even contradictions. Partisans, moreover, often have good rhetorical reasons for taking stark positions.

Fortunately, Justice Kagan is showing that it is still possible to argue about the Court in a way that is both nuanced and accurate.