Justice Kagan Understands The Conservative Legal Movement

Two weeks ago, Justices Kagan and Barrett admirably defended the Supreme Court before the House and Senate. Last week, in remarks before the Ninth Circuit Judicial Conference, Justice Kagan offered a sophisticated analysis to explain what it means to have a conservative Supreme Court:

One of the Supreme Court’s three liberal justices defended her conservative colleagues on Thursday, insisting the court has not been too deferential to President Trump.

“I think that is a bad rap,” Justice Elena Kagan said during an appearance in Washington State, at an annual gathering of judges and lawyers who work in the judiciary’s Ninth Circuit.

“Is this court very conservative?” she continued. “Does it do a bunch of things that are out of the playbook of the conservative legal movement that I think are deeply wrong? Yes.”

“But,” she added, “is this court kind of a puppet for the current administration? I think definitely not.”

Justice Kagan has long understood what the “playbook of the conservative legal movement” was. As Dean of Harvard Law School, Kagan welcomed FedSoc students, and recruited right-of-center professors. She gets it.

The vast majority of landmark opinions the Roberts Court has decided since 2017 have nothing to do with President Trump. Look no further than how many dissents from Justices Scalia and Thomas, that long predated Trump, were vindicated. Reversed decisions include Roe v. Wade, Lemon v. Kurtzman, Board of Regents v. Bakke, Humphrey’s Executor, Thornburg v. Gingles, and so on. The overruling of each of these precedents has been in the playbook for decades.

To be sure, a number of Trump specific rulings have arisen. Even then, I don’t think the Court was really thinking about the 45th or 47th presidents. Trump v. Hawaii was largely a decision about executive power. Trump v. United States was a ruling “for the ages.”

Yet, when a case is clearly about Trump, and not part of the broader playbook, Trump tends to lose. I think Trump v. Cook was a leading example. The Court jumped over so many prudential hurdles to get to the ruling, which Justice Barrett pointed out. Moreover, Trump v. Barbara raised an issue that had been debated since reconstruction, but Trump’s views on immigration were in the background.

The Court is not a Trump Court. The Court is a conservative Court.