Kagan: Supreme Court Gets 'Bum Rap' on Trump

Supreme Court Justice Elena Kagan told Catholic University law students on October 20 that the court is getting a "bum rap" from critics who think it does whatever Donald Trump wants. In the same talk she called the conservative majority's gerrymandering decisions "destructive to democracy."

According to USA Today and Reuters, Kagan pointed to rulings against the administration on tariffs, birthright citizenship, the attempted removal of Federal Reserve Governor Lisa Cook and the deployment of the National Guard.

A mixed record

The court has handed the administration some real defeats. Kagan's list covers several of the biggest separation-of-powers fights of the current term, and in each case at least some conservative justices joined the liberals in checking the executive.

Public approval of the court has fallen in recent years, and the view that its 6-3 conservative majority acts as an arm of the Republican Party has fed calls for structural reform. Kagan's examples were meant to show a court that doesn't fit a simple partisan picture.

Legal analysts note that the court's emergency docket has often gone the administration's way, which weakens her defence. Kagan acknowledged that tension in her wider remarks.

She also criticised coverage of the court's Trump rulings, saying reporting often misses the justices' internal divisions. The democracy questions, gerrymandering above all, deserve more attention than scorekeeping on individual administration cases, she said. She has made that point in several public appearances.

"A race to the bottom"

Kagan was blunter about redistricting. She said the majority's gerrymandering rulings have been "destructive to democracy" and set off a "race to the bottom" among states. By limiting federal courts' oversight of partisan gerrymandering, she argued, the court has effectively given both parties licence to lock in power by manipulating maps.

Both parties now do this openly, redrawing congressional maps in the middle of the decade for partisan gain, confident federal courts won't step in. Kagan's comments suggest she sees this as one of the court's most serious failures, because it damages the democratic process itself.

Justices making their case

Court watchers say Kagan is trying to shape how the public understands an institution she thinks is widely misunderstood, defending its independence while warning that its gerrymandering decisions undermine democracy's ability to correct itself. The court is heading into a term full of separation-of-powers fights, and the arguments over ethics rules, term limits and the shadow docket are getting louder.

She isn't the only justice speaking out. Chief Justice Roberts and Justice Barrett have also recently defended judicial independence in public. It isn't clear yet whether Kagan's "bum rap" argument will win over sceptics.