Supreme Court Justice Elena Kagan in a rare public address spoke candidly about her fear that a multitude of threats are placing the country’s independent judicial system at risk.
She made the comments at the annual 9th Circuit Judicial Conference, speaking broadly of what she called “scary stuff” facing the court without mentioning names.
President Donald Trump and his administration loomed large over the conference, though Kagan and others did not name him explicitly.
“The response to perceived lawlessness of any kind is law,” Kagan said. “And the way an independent judiciary should counter assaults on an independent judiciary is to act in the sorts of ways that judges are required to act.”
Speaking a month after the Supreme Court ended its term last month, Kagan spoke about the rise in threats against judges under the Trump administration. U.S. Marshals Service data shows it investigated threats against 197 judges between March 2 and late May of this year, more than double the 80 judges threatened in the five months before.
“That is scary stuff,” Kagan said.
Kagan is the latest of the court’s liberal members to speak out against threats to judicial independence. In May, Justice Ketanji Brown Jackson urged her colleagues to show “raw courage” in the face of rising attacks by the Trump administration. Justice Sonia Sotomayor also issued a statement earlier this year voicing concerns about a shift in norms shaking the “foundation of the rule of law.”
Kagan’s speech in California also came one day after she dissented from an emergency docket (or shadow docket) decision allowing Trump to fire Biden-era consumer safety regulators. The court has seen a rise in emergency docket appeals under the second Trump administration, the majority of which the president has won.
Those decisions have allowed the administration to move forward with mass firings of federal employees, cancel federal grants and exclude transgender people from the military.
Kagan on Thursday spoke critically of emergency docket rulings, citing a lack of explanation that she said threatens to erode public trust in the judiciary.
“That’s not the right way to approach it,” she said. “As we have done more and more on this emergency docket, there comes a real responsibility that I think we didn’t recognize when we first started down this road to explain things better.”