Justice Elena Kagan’s recent comments at the Ninth Circuit Judicial Conference condemning attacks on judges and the Supreme Court deserve both praise and pointed criticism. While she is correct that vilifying judges can foment violence and that protests at the homes of justices should not be allowed, her sudden concern for judicial security and institutional integrity rings hollow coming after years of silence while by her own acknowledgement her colleagues faced unprecedented threats, harassment, and even an assassination attempt. It’s part of a disturbing pattern for Kagan, who presents herself as a centrist of sorts but whose statements of concern for the Court as an institution are selective and suggest a political motivation.
Kagan’s concern about attacks on the judiciary is well-founded. The statistics she could have cited are alarming: the U.S. Marshals investigated more than 1,000 “serious threats” over the past five years, resulting in over 50 criminal charges.
She is also right that judges shouldn’t allow these threats to affect their judgment, but should “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.” The rule of law depends on judicial independence, and threats of violence have no place in our democratic system.
But where was Justice Kagan’s newfound concern for judicial civility and security during the unprecedented harassment of her conservative colleagues over the past several years?
When protesters gathered outside the homes of justices with young children and doxed their schools, when they and their family members faced death threats, when justices were hounded in restaurants and at home, and when there was an assassination attempt against Justice Kavanaugh—Justice Kagan remained silent. Now, three years later, she called the threats “scary stuff” and lamented that the type of concerns her colleagues faced after Dobbs have now spread to all levels of the judiciary.
A justice truly committed to institutional integrity would have defended the Court’s legitimacy regardless of which colleagues were under attack or which political faction was doing the attacking.
This isn’t the first time Kagan has demonstrated selective, politically convenient outrage. At the Ninth Circuit conference Kagan said the Court should be more judicious about making decisions on the emergency docket and that the majority should explain its reasoning more often on those expedited cases.
But Justice Kagan has regularly joined numerous emergency orders without demanding explanations. She was perfectly content with unexplained orders when they aligned with her preferred outcomes during previous administrations.
Perhaps the most glaring example of Justice Kagan’s politically convenient positioning is her dramatic reversal on universal injunctions. In 2022, while speaking at Northwestern Law School during the Biden administration, Kagan was sharply critical of the practice, stating that “it just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years that it takes to go through a normal process.” She claimed the forum shopping problem “has no political tilt to it,” noting that “in the Trump years, people used to go to the Northern District of California, and in the Biden years they go to Texas.”
Yet when the Supreme Court decided Trump v. CASA this term—a case that presented the perfect opportunity to end the problematic practice she had criticized—Justice Kagan joined Justice Sonia Sotomayor’s apocalyptic dissent. Sotomayor’s opinion called the Court’s decision to limit universal injunctions a “grave attack on our system of law” and claimed that “[n]o right is safe” in the new legal regime.
This represents a complete 180-degree turn from her 2022 position. When universal injunctions were being used against President Biden’s policies, Kagan saw them as problematic. When the Court moved to limit them during President Trump’s second term, she suddenly viewed restrictions on universal injunctions as an existential threat to constitutional rights.
The timing is telling: Kagan criticized universal injunctions when they hindered a Democratic president’s agenda but defended them when restrictions would benefit a Republican president. This isn’t judicial philosophy—it’s political calculation dressed up in legal robes.
Justice Kagan’s recent comments fit a troubling pattern of selective institutional concern. She speaks eloquently about threats to judicial independence when they come from sources she finds politically objectionable, but remained silent when even more serious threats emerged from aligned political actors. She demands transparency in emergency orders now, but never showed such concern when previous Courts used similar procedures. Most tellingly, she flip-flopped entirely on universal injunctions based on which president’s policies were being blocked.
This approach doesn’t strengthen institutional legitimacy—it weakens it. Citizens lose faith in courts when they perceive that judges apply different standards based on political considerations. Justice Kagan’s pattern of late-arriving concern for judicial civility and inconsistent positions on procedural questions would carry more weight if they appeared to be based on principle rather than political convenience.