Justice Kagan’s Hypocrisy on Universal Injunctions | The American Spectator

Last Friday’s Supreme Court ruling in Trump v. CASA finally ended what many of the President’s supporters saw as a “judicial insurrection.” Upon assuming office, President Trump issued a number of executive orders involving a variety of issues. They were immediately challenged by lawsuits filed in a select group of district courts, virtually all of which issued universal injunctions that seriously impeded implementation of the President’s agenda. Such injunctions have long been criticized by numerous legal scholars and several members of the U.S. Supreme Court, including Justice Kagan.

Indeed, Kagan has been particularly trenchant on this subject. During a 2022 seminar at Northwestern University’s School of Law, for example, Kagan succinctly explained her view on the issue: “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 the normal process.” Friday’s ruling, authored by Justice Amy Coney Barrett, validated Kagan’s position: “These injunctions, known as ‘universal injunctions,’ likely exceed the equitable authority that Congress has granted to federal courts.” Yet Justice Kagan inexplicably refused to join the Court’s majority in a ruling that reiterates her frequent public statements about this very issue.

Instead, like Justice Jackson, Kagan joined a dissenting opinion in which Justice Sotomayor accuses the Trump administration of gamesmanship for using Trump v. CASA to challenge the jurisdiction of district courts: “Yet, shamefully, this Court plays along. A majority of this Court decides that these applications, of all cases, provide the appropriate occasion to resolve the question of universal injunctions and end the centuries-old practice once and for all.” Why would Kagan join such a dissent? She knows better than most that, from 1789 to 1963, the district courts never issued universal injunctions. As Justice Barrett unambiguously writes:

The universal injunction was conspicuously nonexistent for most of our Nation’s history. Its absence from 18th and 19th-century equity practice settles the question … That the absence continued into the 20th century renders any claim of historical pedigree still more implausible. Even during the deluge of constitutional litigation that occurred in the wake of Ex parte Young, throughout the Lochner Era, and at the dawn of the New Deal, universal injunctions were nowhere to be found.

Kagan’s refusal to join the Court’s six-justice majority is particularly strange considering a point she made about “forum shopping” during her remarks at the Northwestern University seminar noted above. One reason the majority ruled that district courts can no longer issue nationwide injunctions is that it encourages plaintiffs to “shop” for judges they know will rule against President Trump on virtually any issue brought before them. As Attorney General Pam Bondi pointed out at a Friday news conference, of 40 nationwide injunctions issued since Trump returned to the White House, 35 emanated from only five liberal district courts.

Justice Kagan is easily the smartest of the three left-leaning justices who declined to support the Court’s majority on Trump v. CASA,  and her public remarks have made it abundantly clear that she thoroughly understands the constitutional nuances of the case. Consequently, it is all but impossible to escape the conclusion that her primary motivation is political. She, like Justices Sotomayor and Jackson, is not guided by a consistent or even coherent judicial philosophy. Nor does she feel any compulsion to adhere to the plain language of the Constitution. Even so, Kagan was too circumspect to join Justice Jackson’s deliberately disrespectful dissent.

The majority’s ruling thus not only diverges from first principles, it is also profoundly dangerous, since it gives the Executive the go-ahead to sometimes wield the kind of unchecked, arbitrary power the Founders crafted our Constitution to eradicate. The very institution our founding charter charges with the duty to ensure universal adherence to the law now requires judges to shrug and turn their backs to intermittent lawlessness. With deep disillusionment, I dissent.

This last sentence is the Parthian  shot of Jackson’s dissent. It is clearly meant as an insult to the justices who made up the Court’s majority in this case. The traditional Supreme Court verbiage employed in even the most indignant dissent goes as follows: “I respectfully dissent.” Justice Jackson was unmistakably at pains to make it blindingly obvious that she neither agrees with nor respects Justices Alito, Barrett, Gorsuch, Kavanaugh, Roberts, or Thomas. This was clearly too much for Barrett: “JUSTICE JACKSON would do well to heed her own admonition: “[E]veryone, from the President on down, is bound by law.” Ibid. That goes for judges too.”

Kagan would never be dumb enough to overtly attack her colleagues in the way Jackson did in Trump v. CASA. Nonetheless, her politics are every bit as dangerous. Her principles, like those of Jackson and Sotomayor, are purely transactional. The obvious reason she objected to universal injunctions in 2022, yet reversed her position in 2025, is that the President in the former case was a Democrat. Now that a Republican resides in the White House, such injunctions are needed to check his power. She couldn’t care less about charges of hypocrisy. Such concepts, for her, are nothing more than a bourgeois delusions with no meaning in the real world.

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