After allowing rogue lower court judges to usurp the power of the executive branch for months on end, Associate Justice Elena Kagan suddenly has a problem with the overreach now that the same thing is happening to the Supreme Court.
On Thursday, the Obama appointee joined her Republican-appointed colleagues in clarifying a June 23 order from the high court that granted temporary relief to the Trump administration. In its 6-3 ruling — in which Kagan dissented — the court placed a temporary stay on an injunction by a Massachusetts-based district judge attempting to block the administration’s deportation of illegal aliens to so-called “third countries.”
In an act of rebellion, District Judge Brian Murphy issued a separate order hours after SCOTUS’s ruling that effectively declared that his initial block on the federal government’s policy remained in effect. Referring to Murphy’s decision as a “lawless act of defiance,” the Trump administration filed a motion with the high court to “clarify” its June 23 order.
While disagreeing with the court’s initial granting of the administration’s request for a stay on Murphy’s order, Kagan sided with her Republican-appointed colleagues in shutting down the lower court judge’s attempt to sidestep the high court.
“I voted to deny the Government’s previous stay application in this case, and I continue to believe that this Court should not have stayed the District Court’s April 18 order enjoining the Government from deporting non-citizens to third countries without notice or a meaningful opportunity to be heard,” Kagan wrote in a concurring opinion. “But a majority of this Court saw things differently, and I do not see how a district court can compel compliance with an order that this Court has stayed. Because continued enforcement of the District Court’s May 21, 2025 order would do just that, I vote to grant the Government’s motion for clarification.”
Associate Justices Sonia Sotomayor and Ketanji Brown Jackson would not have granted the administration’s motion for clarification.
While it’s nice to see Kagan recognize the egregiousness of Murphy’s behavior, the district judge’s outlandish edict was only made possible by her unwillingness to shut down such antics.
Since President Trump’s return to office, rogue lower court judges have issued overreaching universal injunctions and restraining orders to block the enforcement of his policies. In effect, this judicial coup has sought to stymie the will of the 77 million Americans who voted for the president during last year’s election.
And yet, despite previously criticizing lower courts’ use of nationwide injunctions when Joe Biden was president, Kagan declined to side with the high court’s majority in Trump v. CASA late last month to nullify such overreaching orders. (As noted by Associate Justice Samuel Alito and further demonstrated since the court’s decision, however, the majority’s opinion didn’t go far enough in fully stopping leftists’ judicial coup.)
Like a parent who allows his or her child’s disruptive behavior to go unpunished, Kagan’s refusal to forcefully shut down the tyrannical actions of the lower judiciary has emboldened rogue judges like Murphy to try and sidestep the Supreme Court. It’s not only contributed to these bad actors’ clear disrespect for the high court, but for separation of powers writ large.
If Kagan and her colleagues have any interest in maintaining SCOTUS’s respectability among the lower judiciary, they need to put the definitive kibosh on these rogue judges’ overreaching shenanigans. Otherwise, the antics of activist jurists like Murphy will become the norm, and the credibility of the judicial branch will suffer.
Shawn Fleetwood is a staff writer for The Federalist and a graduate of the University of Mary Washington. He previously served as a state content writer for Convention of States Action and his work has been featured in numerous outlets, including RealClearPolitics, RealClearHealth, and Conservative Review. Follow him on Twitter @ShawnFleetwood
