'Bum rap': Supreme Court is not in Trump's pocket, Justice Kagan says
WASHINGTON − Supreme Court Justice Elena Kagan on Oct. 20 said the court has gotten a “bum rap” for supposedly being in President Donald Trump’s pocket.
But in addition to defending the 6-3 conservative
court’s independence from the president, the liberal justice also expressed concern about the effects of an ideologically lopsided bench.
“I do think that there was a period of time when the court was in a better place and the country was in a better place because the court was more balanced and it was unclear whether the court could push through anybody’s program,” Kagan said during public remarks at Catholic University Law school.
Some Democrats frustrated by the conservative dominance on the court have called for expanding the court or imposing term limits, changes that would be difficult to impose even if Democrats take control of Congress in next month’s midterm elections.
During a conversation with Professor J. Joel Alicea at the law school, Kagan was asked if she wanted to elaborate on her comments this summer that the court’s rulings against some of Trump’s top policy priorities show it’s not a rubber stamp for the president – who appointed three of the justices.
Kagan, who was appointed to the court by President Barack Obama, said making that point was important “because when you pick up the newspapers and get on the internet, you see a lot of `This court just does whatever the president says.’”
“I do think it’s a bum rap,” she said.
Kagan noted that the court ruled against Trump’s signature tariffs, his attempt to redefine birthright citizenship, to fire Federal Reserve Governor Lisa Cook and to deploy the National Guard as part of the administration’s immigration crackdown.
“These were things that President Trump cared deeply about,” she said.
But Kagan also repeated another previous point − that the court is still “deeply conservative.” That conservative majority has allowed the court to push many items on the conservative legal agenda, including scrapping campaign finance regulations and “eviscerating” the Voting Rights Act, she said.
By contrast, Kagan said, when the court had to operate for months with only eight justices after Justice Antonin Scalia died and Senate Republicans refused to consider Obama’s nominee to replace him, the justices were forced to compromise and not take big swings because they often divided on major issues.
“The court had a kind of legitimacy,” she said. “And when the court has a kind of legitimacy of that kind, it helps to create a stable country.”
Kagan said the conservative majority’s recent decisions on gerrymandering, voting rights and campaign finance rules have weakened the Democratic system.
“I do think in all these areas, the court has kind of blinded itself to the very deleterious effects of their rulings on how the political system works,” she said, “and has created a democracy that does not work as well as it should.”