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.
I sort of agree with this. But the second “thing” (that the Court has been willing to check Trump a few times) does not apply at all to Thomas, Alito, Gorsuch, or Kavanaugh. Those four seem to be loudly and proudly in the rubber-stamp camp.
Also, the decisions in Trump v. United States, Louisiana v. Callais, and the four dissents in Trump v. Barbara were so atrocious that they drown any of the Court’s decisions checking the Trump administration. This Court deserves no praise whatsoever.