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 made the comments as she answered questions posed by an appeals court judge and a lawyer in front of dozens of attendees who work in the nine-state Western region served by the circuit.
Polls have shown declining trust in the institution, and a number of the justices have used recent public appearances to try to defuse the notion that they have become political actors.
Since Mr. Trump returned to office, the court has signed off on a series of his policies on a temporary basis, through emergency orders that have allowed the administration to carry out many of its executive orders even while their legality was being weighed in court.
But Justice Kagan, when asked how she viewed criticism of the court for greenlighting the administration policies, insisted the reality of the court’s record is more nuanced.
In its most recent term, which ended in late June, the Supreme Court cleared the way for a number of long-term conservative goals, she noted. She cited decisions to allow the president sweeping power to fire leaders of independent agencies and to significantly weaken the Voting Rights Act of 1965, a key civil rights law.
But several times, Justice Kagan continued, a majority of the justices joined together to reject Mr. Trump’s initiatives. The justices agreed to invalidate his sweeping emergency tariffs, to strike down his executive order ending birthright citizenship for the children of undocumented immigrants and some temporary foreign visitors and to nix his attempt to fire a member of the Federal Reserve Board of Governors.
“I don’t see this as a court that is just going to rubber-stamp what the current administration does — quite the opposite,” she said.
Justice Kagan was in the majority in each of those cases, joined by the court’s other two liberal justices but also several justices appointed by Republican presidents. The court’s decisions rejecting those policies infuriated the president.
Mr. Trump lashed out at the justices who rejected his tariffs program, including two justices nominated by him, calling them “fools and lap dogs.”
When Justice Kagan addressed the same conference last year, she used the appearance to express concern about how the court handled a barrage of emergency applications on Trump administration policies.
At the start of Mr. Trump’s second term, he issued a series of executive orders, many of which faced immediate court challenges that quickly arrived at the court on the emergency docket. Applications on that docket, often referred to by critics as the shadow docket, typically come to the justices without full briefing or a robust lower court record, and the justices sometimes rule on applications without explaining their reasoning.
The court, she said then, should “be cautious about acting on the emergency docket.”
At Thursday’s event, Justice Kagan said that she thought the court had “made some improvements” in the past year in how it has handled emergency requests. For instance, she said she believed that the court’s “transparency has become better by a fair bit” because the court has issued more orders that included some reasoning.
Still, she said she believed the court has still been “granting too many of these applications,” creating a “kind of momentum” that has led to the filing of more emergency requests.
The justice’s comments were her first public statements since she testified to Congress earlier this month to ask for millions more dollars in funding for security for the justices. She was joined on Capitol Hill by Justice Amy Coney Barrett, a conservative justice nominated by Mr. Trump, to describe the rising number of threats made against the justices.
On Thursday, she told attendees of the judicial conference that life for a Supreme Court justice has changed since she was appointed to the court in 2010 by President Barack Obama and the justices faced fewer threats.
“I drove myself to work, went out grocery shopping, went to the movies,” she said of her early years on the court. “I did the normal things that people do without any security in sight. I felt like, you know, just like a normal everyday person. And that’s not true for us anymore.”
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