Supreme Court Justice Kagan says independence of judges is under threat
Supreme Court Justice Elena Kagan said Thursday the independence of judges is under attack, buffeted by threats of violence, vitriolic reactions to rulings and defiance of court orders, particularly by government officials.
Speaking in a wide-ranging conversation at a judiciary conference, the high court’s second-longest-serving liberal justice urged fellow judges to be vigilant and go about their work without fear or favor.
“The response to perceived lawlessness of any kind is law,” Kagan said.
“Judges just need to do what they are obligated to do,” she said, “which is to do law in the best way they know how to do, make independent, reasoned judgments based on precedent, based on other law, to not be inhibited by any of these threats.”
Kagan’s public comments were her first since the Supreme Court term ended last month, coming as President Donald Trump and his allies have escalated diatribes against judges and called for the impeachment of some. Threats against judges have also spiked.
She called the threats “scary stuff” and said the type of concerns about personal safety that some members of the high court faced after overturning the federal right to abortion in 2022 have now spread to all levels of the judiciary.
She also said that the vilification of judges had crossed a line and that litigants’ increasing willingness to flout rulings “is just not the way the system works.” Kagan did not mention the Trump administration by name but said “most especially” the biggest offenders have been government officials.
Kagan also used the opportunity to chide the conservative majority on the Supreme Court for not explaining itself more in high-profile emergency rulings in favor of the Trump administration that allowed the president to sharply cut the Education Department, discharge transgender troops from the military and end protections for hundreds of thousands of migrants.
The majority often doesn’t offer the legal reasoning behind decisions on the emergency docket, and they are made without oral arguments and with limited briefs. Kagan said the court should be more judicious about its use of what critics refer to as the “shadow docket.”
“Courts are supposed to explain things,” Kagan said. “That’s what courts do.”
When asked to address what appear to be disagreements on the court, Kagan resorted to sarcasm, saying, “I’ve noticed there is some disagreement on the court.”
Those disagreements were on display during the recently concluded term. Trump emerged largely successful in emergency appeals on some of the most significant parts of his agenda. The court scaled back the power of lower courts to issue nationwide injunctions, which have blocked many of his initiatives, and allowed him to fire independent agency heads.
Kagan frequently joined her liberal colleagues in sharply criticizing those emergency rulings.
But she broke with liberals in a handful of cases on the high court’s regular docket. She sided with the court’s more conservative members in allowing fuel companies to sue over California’s emission regulations and giving electronic cigarette manufacturers latitude regarding the courts in which they can file challenges against the Food and Drug Administration.
In some of the term’s biggest cases, the justices voted 6-3 along ideological lines to uphold state bans on gender transition care for minors and to allow parents to withdraw their children from public school lessons that use books featuring gay and transgender characters.
Kagan was in the majority 83 percent of the time this past term - the fourth most frequently out of the nine justices. That surprised some legal observers, given the court’s 6-3 conservative tilt.
The justices are expected to spend the summer traveling, teaching and giving speeches across the country and abroad. The next Supreme Court term begins in October and includes cases on laws banning transgender athletes in women’s sports and campaign finance.
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