Eight years ago, life was good for Supreme Court Associate Justice Elena Kagan. As a rock-ribbed liberal, she was in a strong position to rule at the center of a hard-left majority for decades to come, provided the electoral favorite Hillary Clinton won the presidency and flipped the Senate to the Democrats.
But Donald Trump won the presidency in 2016. I led the outside confirmation effort for Justice Neil Gorsuch, another conservative and my former boss, to replace the late Justice Antonin Scalia. Things went from bad to worse for Justice Kagan and her leftist cohorts when Justice Anthony Kennedy, the court’s ideological center, announced his retirement in June 2018.
After a grueling confirmation battle for which I served as the Senate staff leader, the Senate confirmed Justice Brett Kavanaugh. But Justice Kagan’s nightmare was just beginning as Justice Ruth Bader Ginsburg, the court’s senior liberal, died in September 2020. Mr. Trump nominated Justice Amy Coney Barrett, a solid conservative, and my team at the Article III Project led the flawless outside effort to build the necessary political support for the Senate to easily confirm her a mere month later.
This past term, conservative justices gave Justice Kagan and her two liberal colleagues — Justices Sonia Sotomayor and Ketanji Brown Jackson — plenty over which to seethe.
Among other triumphs for the Constitution and American democracy, the 6-3 constitutionalist Supreme Court overruled Roe v. Wade and sent abortion regulations back to the states, through their elected representatives, where they belong. Then, the court began dismantling the clearly unconstitutional and dangerous administrative state through a series of rulings.
In throwing out Chevron deference and requiring judges and juries (instead of bureaucrats) to decide legal disputes brought by federal agencies (Jarkesy decision), federal judges no longer unconstitutionally hand over their judicial power to nameless, faceless, largely unaccountable executive branch bureaucrats. Judges, not bureaucrats, interpret the law and decide cases and disputes under our Constitution. The court also handed Mr. Trump — and every other former and future president — a monumental victory by recognizing broad presidential immunity from criminal prosecution for official acts, just like federal judges and members of Congress largely enjoy.
Justice Kagan either wrote or joined dissents in all of these cases.
Last November, the justices unanimously adopted a code of conduct that largely mirrors what applies to federal judges on lower courts. At the 9th Circuit Judicial Conference on July 25, despite previously agreeing to the court’s code of conduct, Justice Kagan publicly complained that this code lacks an enforcement mechanism. She acknowledged that settling on an appropriate one would be difficult. The current system calls for self-policing by each justice. Justice Kagan suggested that judges in lower courts should enforce ethical requirements against justices.
This suggestion is unconstitutional — and transparently political during presidential election season. The Constitution vests the judicial power in the Supreme Court, followed by inferior courts that Congress creates. Inferior courts are constitutionally subordinate to the Supreme Court and Congress, but the Supreme Court is certainly not constitutionally subordinate to Congress. Under Justice Kagan’s plan, a panel of federal district judges could issue orders to Supreme Court justices. That absurd scheme gets our constitutional structure backward.
This supposed ethics controversy is nothing more than a lie. Far-left liberals, including those at Demand Justice, a group that wants to help Kamala Harris pack the Supreme Court with leftists like Justice Kagan should she win the election, hate the court’s rightward shift. They use ethics as a smoke screen to attack justices they disagree with. For instance, Democratic Sens. Dick Durbin of Illnois and Sheldon Whitehouse of Rhode Island called for Justices Samuel A. Alito and Clarence Thomas to recuse themselves from two cases concerning the Jan. 6 riot. The reason? The justices’ wives were supposedly sympathetic to rioters.
A justice and his or her spouse are separate people. The spouse’s political views do not necessarily reflect those of the justice. Also, Ginni Thomas and Martha-Ann Alito never expressed such sympathies. Mrs. Thomas questioned the results of the 2020 election but never advocated in favor of violence as a response. Alito flew two patriotic American flags at her beach house that had nothing to do with the effort to overturn the 2020 election.
Justice Kagan knew exactly what she was doing at the 9th Circuit conference. It was a cold, calculated partisan attack on her conservative colleagues on the court after a rough term for Ms. Kagan and her two leftist wing-women. Justice Kagan described herself as not much of a crier but rather more of a wall slammer. She certainly has been doing a lot of slamming these past several years, writing or joining dissent after dissent.
Ms. Kagan’s wall-slamming bleeds over to her clerks, whom she’s mentally abused for years. It’s an open secret within the tight-knit Supreme Court bar. Will her unconstitutional call for “reforms” to the Supreme Court’s “ethics” regime also include her workplace bullying? Does she want lower-court judges appointed by Mr. Trump to decide whether she can sit on cases dealing with workplace abuse?
Justices Thomas and Alito did nothing to warrant the bashings they have received from progressives. Yet even though she did not reference them by name, Justice Kagan provided political ammunition to Kamala Harris’ presidential campaign by endorsing the absurd proposals of the leftists at Demand Justice as well as Mr. Durbin and Mr. Whitehouse.
Instead of defending the court — and her colleagues — from an unconstitutional attack in the form of supervision by inferior court judges, Justice Kagan joined it. She deserves the punishment of a lifetime spent writing or joining radical dissents, like her joining of Justice Sotomayor’s mindless dissent in which they pretend drug addicts somehow have a constitutional right to take over public parks with their homeless encampments, needles, trash and feces.
