As the New York Times reported, at a Ninth Circuit conference last week Justice Elena Kagan “defended her conservative colleagues…, insisting the court has not been too deferential to President Trump”:
“I think that is a bad rap,” Justice Elena Kagan said during an appearance in Washington State, at an annual gathering of judges and lawyers who work in the judiciary’s Ninth Circuit.
“Is this court very conservative?” she continued. “Does it do a bunch of things that are out of the playbook of the conservative legal movement that I think are deeply wrong? Yes.”
“But,” she added, “is this court kind of a puppet for the current administration? I think definitely not.”
Lefty law professor (and former national legal director of the ACLU) David Cole offers a similar take in a long New York Review essay on the Court’s most recent term. “[T]his is not Donald Trump’s Court,” Cole explains, as he discusses six cases that “established important guardrails on the executive branch,” all of which “raised serious and unresolved questions.” (The six involved tariffs, birthright citizenship, Fourth Amendment protection of cellphone-history, the firing of a Fed governor, use of National Guard, and counting of mail-in ballots.) “[T]hese were all close cases, and if the Court were merely seeking to do Trump’s bidding, it could have ruled his way in all of them.”
(Don’t mistake Cole for a defender of the Court. In the second half of his essay, he criticizes the Court for “recogniz[ing] few limits on its own power” and for “too often run[ning] roughshod over prior decisions to achieve conservative results simply because it disagrees with those prior decisions.”)