Why Elena Kagan is Defending the Roberts Court

The justice recently contended against the notion that the court has become a rubber stamp for Trump. She’s not wrong—but that’s just part of the story.

Justice Elena Kagan offered a notable defense of her colleagues on the Supreme Court last week by rejecting claims that the justices were simply doing Trump’s bidding. “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 told an audience last week in Washington state, according to Politico. “I think that that is a bad rap.”

Kagan is generally correct, with a few notable exceptions. It is important to understand why she is correct to better appreciate what the second half of Trump’s term will look like, and what the playing field will look like for the next Democratic administration.

It is true that Trump has scored a number of major victories at the Supreme Court in his second term. But they have largely been on matters in which the court’s six-justice conservative majority would have supported any Republican president. “You just have to deal with the fact that there’s a conservative court doing things that conservative jurists have long thought it appropriate to do, and I can really dislike that,” Kagan explained last week. “But it has nothing to do, I think, with becoming the arm of this current administration.”

In Trump v. Slaughter, for example, the Supreme Court ruled that Trump could fire commissioners of the Federal Trade Commission, giving him de facto control over multiple federal regulatory agencies that Congress had designed to be independent. The obvious beneficiary of that ruling is Trump. But legal conservatives have been gunning to overturn Humphrey’s Executor v. United States—the 1935 case that upheld for-cause removal protections—for decades.

On voting rights and campaign finance laws, Trump also has very strong views on the matter. The president has been an enthusiastic champion of partisan gerrymanders over the past 18 months in a desperate attempt to maintain GOP control of Congress. He also welcomed efforts by Elon Musk and other Silicon Valley billionaires to bail out his struggling presidential campaign in the summer of 2024 with large cash infusions into friendly super PACs, abandoning his past calls to overturn Citizens United.

The court’s recent rulings in this direction have nothing to do with Trump. The Supreme Court’s current hostility toward the Voting Rights Act of 1965 dates back to a 2009 case when the justices hinted that certain portions might no longer be constitutional. That ruling not only predates the Trump administration itself by eight years but also predates Trump himself becoming a major presence in American politics by roughly a year. The high court’s war on campaign finance laws also began in earnest with the Citizens United decision one year later in 2010.

Every administration faces tough decisions........

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