MONTEREY, California — As the Trump administration’s clash with the judiciary intensifies, Supreme Court Justice Elena Kagan issued a message on Thursday: Stop threatening judges, and always obey court orders.
But Kagan spoke in vague terms and did not say who her warning was aimed at. She did not directly mention President Donald Trump, even as some lower-court judges have already found that the administration has defied their commands.
“That’s just just not the way our system works, not the way rule of law in this country works,” Kagan said at a judicial conference here. “That’s true for the Supreme Court, and it’s also true for every district court. Unless and until an appellate court or the Supreme Court says otherwise, judicial orders are judicial orders and need to be respected.”
Kagan cautioned the hundreds of judges in the audience not to respond to verbal attacks by lashing out in their decisions, but by carrying out their duties as they normally do.
“The response to perceived lawlessness of any kind is law, 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,” Kagan said.
The Obama appointee praised Chief Justice John Roberts for pushing back against attacks on the courts from both the right and the left. And she said the notion that “government officials” could or should ignore court orders was particularly disruptive to the rule of law.
Though Kagan spoke only in general terms, the backdrop for her remarks was unmistakable. Several federal district judges have found that the Trump administration has violated their orders, particularly in deportation cases. Trump officials — and the president himself — have launched hostile rhetoric against judges who rule against the administration. And a whistleblower has accused a top Justice Department official of crudely proposing to defy adverse court orders.
Just hours before Kagan spoke, another speaker on the same stage denounced statements in February from Trump and Vice President JD Vance that seemed to invite a confrontation with the courts.
“He who saves his Country does not violate any Law,” Trump said at the time.
“Judges aren’t allowed to control the executive’s legitimate power,” Vance said.
Kagan is the latest member of the court’s liberal wing to decry threats to judicial independence. In May, Justice Ketanji Brown Jackson urged judicial colleagues to show “raw courage” in the face of a fusillade of attacks that she said appeared designed to intimidate the judiciary. And In March, Justice Sonia Sotomayor said an abrupt shift in norms was “shaking some of the foundation of the rule of law.”
Kagan’s tone was less urgent than Jackson’s, though she raised many of the same concerns, including an increasing number of threats of violence aimed at judges.
Kagan lamented the protests that erupted outside the homes of conservative justices’ homes following POLITICO’s 2022 report on the draft Supreme Court opinion overturning the federal constitutional right to abortion. She mentioned that some of her colleagues have children and that Justice Brett Kavanaugh’s home was targeted by an unsuccessful assassin during the same period.
“That is scary stuff,” Kagan said.
Kagan’s most significant criticism of the court she serves on was directed at its handling of cases on the emergency docket, sometimes referred to as the shadow docket by critics. That docket has received a flood of appeals from the Trump administration in the first six months of Trump’s second term. Trump has won the vast majority of them, as the Supreme Court has overturned district court orders and allowed the administration to mass-fire federal employees, cancel federal grants, exclude transgender people from the military and enact other sweeping parts of Trump’s agenda.
Kagan spoke one day after she sharply dissented from one such emergency-docket decision: a ruling allowing Trump to fire Biden-appointed consumer safety regulators despite a federal law saying they can only be dismissed due to misconduct or inability to serve.
Kagan offered a veiled critique of her conservative colleagues’ approach, suggesting they “understand interference in an elected president’s ability to execute his agenda as sort of automatically irreparable harm” that entitles the administration to emergency relief from the high court.
“I think we’re going to continue to have disagreements about that,” she said.
But Kagan’s main complaint about the emergency docket was that the high court’s rulings are often not explained much and sometimes not explained at all, leaving lower courts and the public to guess at the court’s rationale.
“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.”
Kagan said she is often disappointed on the current court by finding herself “on the losing end with two fairly predictable women.”
“I don’t enjoy that. I find it frustrating. I find it disappointing. I find it sometimes even maddening,” she said. “It’s just a fact of the matter that this sometimes happens on cases that I care strongly about. … You just sort of have to turn a page.”
