Elena Kagan’s Warning to Progressives

The U.S. Supreme Court is seemingly under fire right now from every political direction.

From the right, President Donald Trump has spent the last year pestering, bullying, and lambasting the Court, including launching repeated attacks against two of his own judicial appointees for daring to rule against him.

Meanwhile, from the left, progressive activists are apparently gearing up to launch another big political push in favor of court packing, judicial term limits, and other measures designed to strip the Court’s conservative justices of the 6–3 majority they now command over the bench.

Is anybody willing to say even just one kind word for the Supreme Court as it is currently constituted?

Enter Justice Elena Kagan. At first glance, Kagan may appear to be the progressive opposition’s greatest legal champion. She has sharply dissented from many of the conservative legal movement’s biggest SCOTUS victories in recent years, and she is now widely seen as the intellectual leader of the dissenting liberal bloc.

Yet Kagan is also working hard to distance herself from the Court’s harshest progressive critics. You might even say that Kagan is now trying to warn those critics to chill out before their approach begins to backfire.

A recent example of such a warning occurred in late July when Kagan spoke to the annual 9th Circuit Judicial Conference in Washington state. As Josh Gerstein reported in Politico, Kagan devoted a notable chunk of her remarks to “rejecting claims that the high court’s conservative majority is in President Donald Trump’s corner.”

“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,” Kagan said. “I think that that is a bad rap.”

As a prime example, Kagan pointed to the tariffs case, which Trump lost 6–3 and in which Trump-appointed Justices Neil Gorsuch and Amy Coney Barrett both ruled against him. “Tariffs is probably the key policy issue for this president. I mean, something he campaigned on, he ran on, he cared an enormous amount about,” Kagan said. “I don’t think that there are all that many decisions in the recent times, where a court strikes down such an important policy to a sitting president.”

Of course, the Supreme Court did strike down President Joe Biden’s student debt cancellation plan in 2022, though it seems safe to say that Biden’s loss in Biden v. Nebraska did not aggrieve him to anywhere near the same degree that the loss in Learning Resources v. Trump has maddened Trump.

Why is Kagan making such a point right now of defending her conservative colleagues against the “bad rap” that progressive critics have laid on them?

Kagan may be worried about where the left’s political winds are blowing and what it means for the future independence of the judiciary. She may be concerned about a cadre of progressive activists who are sharpening their proverbial knives in the hopes of hacking and slashing until the Supreme Court is unrecognizable.

This newsletter’s left-leaning readers may wonder, “What’s wrong with that? Why shouldn’t progressives use whatever national political power they manage to obtain to fundamentally transform the Court?”

Kagan may oppose that kind of partisan move against the Supreme Court for the same reasons why her recently retired liberal colleague Stephen Breyer opposed it. Namely, Kagan may agree with Breyer that court packing is a race to the bottom that will harm liberals and Democrats in the long run by destroying the Court’s ability to ever act as any kind of meaningful check against an overreaching president, whether that president happens to be Trump or whoever comes after him.

The way things seem to be going, I would expect to hear more warnings along these lines from Kagan in the months and even years ahead. What remains to be seen is just how many progressive voters and politicians will be willing to hear her out.