The Supreme Court’s record this term is not “mixed.” It is a rubber stamp with a single notable smudge — and Justice Elena Kagan’s defense of the institution doesn’t change the math.
At a Ninth Circuit judicial conference this week, Kagan told her audience that the Court is no patsy for Donald Trump. “That is a bad rap,” she said, pointing to the 6-3 ruling that swatted down the President’s sweeping tariff authority and called that defeat “striking down such an important policy to a sitting President.” She’s right that it was a loss. She’s wrong that it tells you anything about how the Court actually handles this administration.
The Wall Street Journal’s editorial board rushed to her defense with a column that proves the Court is something more useful to the President than a rubber stamp: a reputation-laundering mechanism that takes the occasional public loss on the merits while delivering everything else on the shadow docket at an eighty percent clip. The board’s evidence for judicial independence is the tariff ruling and a ruling against Trump’s birthright-citizenship executive order. These are real losses for the administration, reported accurately. The board’s evidence for principled conservatism — not MAGA capture — is the Court’s ruling allowing the President to fire heads of executive agencies. This was, the board explains, “a longstanding belief on the right, not something cooked up by MAGA aides last year.”
That sentence does the entire work of the column, and it is wrong.
The numbers tell the real story. Through the end of 2025, the second Trump administration filed 33 emergency applications — the shadow-docket requests that bypass full briefing and oral argument — and won roughly eighty percent of them, according to the Brennan Center’s running tally. The first Trump administration filed 41 and prevailed in 28 percent. The Biden administration filed 19. Bush and Obama combined filed 8 over sixteen years. Those wins weren’t procedural footnotes. They green-lit warrantless immigration enforcement, a maritime deportation program that Kagan herself voted against on the emergency docket, and the administration’s freeze of billions in appropriated funds Congress ordered spent. When you say yes three times out of four, the occasional no isn’t independence. It’s evidence that even a friendly majority needs the facts to be truly terrible before it will push back.
The editorial board, writing a column about whether the Court serves the President, does not mention the shadow docket once.
This is the absence that makes the editorial’s argument possible. Kagan cites two or three high-profile losses on the merits. The board adds one. They do not cite the emergency-application win rate, the summary reversals on immigration orders without merits briefing, or the pattern Steve Vladeck documents in The Shadow Docket (2023): the best explanation for when the Court intervenes and when it does not is partisan politics and not neutral substantive legal principles.
The “old principles” line is the board’s favorite trick. It asks you to believe that a six-justice supermajority appointed by Republican presidents, operating through a movement-coordinated litigation pipeline that has been building cases for two decades, is a neutral vessel through which those principles happen to pass. “Old principles” is a euphemism. A six-justice Republican supermajority, assembled through coordinated Senate refusals to consider Merrick Garland and Amy Coney Barrett’s pre-election installation, does not apply principles neutrally — it applies the principles it selected. Humphrey’s Executor v. United States, 295 U.S. 602 (1935), held for ninety-one years that Congress may restrict the President’s power to remove officers exercising quasi-legislative and quasi-judicial functions. The current Court overruled it. The board calls this a vindication of “old principles.” In the board’s own preferred register — the language of textualism and originalism the Court invokes to justify every ruling — Humphrey’s Executor was old principles. The ruling overruling it was new. The board’s framing is substantive policy preferences presented as neutral methodological commitments, deployed selectively so the container is whatever serves the outcome.
The question the Journal never answers is whether those same principles would have gotten the same deference if a Democratic president had been the one asserting fire-at-will removal power over agency heads, claiming criminal immunity for official acts, and enjoying a 75 percent win rate on the shadow docket. The Biden administration filed 19 emergency applications across four years total. The Court granted a fraction of them. The asymmetry isn’t a matter of principle. It’s a matter of whose principle is being served and whose is being deferred.
The standing asymmetry runs the same direction. The Court contracted standing in Raines v. Byrd when Congress sought to challenge executive overreach; the D.C. Circuit then expanded standing in SpeechNow.org v. FEC when the expansion served conservative political infrastructure. The board does not mention the standing asymmetry either. The board’s argument requires that you not count what the Court does for the administration when no one is watching.
The birthright-citizenship ruling the board points to as another Trump “loss” illustrates the pattern perfectly. The Court didn’t reject the administration’s legal theory. It ducked. It found an excuse to avoid the merits and left the constitutional question wide open for the next case. That is not a loss for the administration; it is a postponement disguised as a defeat. And even on its own terms, the ruling is what the Court should have done — what any court applying United States v. Wong Kim Ark, 169 U.S. 649 (1898), would do. Wong Kim Ark is, by the board’s own standard, “old principles.” The Court upheld them. That is what courts are supposed to do. The board needs it to count as pushback because the rest of the docket does not generate comparable examples.
And there is the narrow-but-not-really problem with the tariff ruling itself. Its stated holding is narrow: the President cannot impose tariffs under the International Emergency Economic Powers Act without clearer congressional authorization. The reasoning reaches broadly into the separation-of-powers architecture. Subsequent cases will cite the reasoning for propositions the holding disclaimed. The board treats the holding as the whole story — pointing at the surface and hoping no one reads the next page.
Kagan herself captured the danger in her dissent in Trump v. United States. The majority, she wrote, created “a law-free zone around the President.” That was the same Court she now assures us is no rubber stamp. Both descriptions cannot be true, and the docket doesn’t change because the speaker finds it uncomfortable to say so in front of her colleagues. The Court that enabled the President to fire agency heads without cause, immunized his official acts from prosecution, and granted the vast majority of his emergency applications isn’t independent. It’s accommodating.
The editorial board’s deepest move is the one it does not acknowledge making. The board quotes Kagan saying she can “really dislike” conservative outcomes but that this “has nothing to do, I think, with becoming the arm of this current Administration.” The board then treats this as the column’s conclusion: the Court is principled, Democrats are partisan, Kagan is honest. But Kagan’s statement is narrower than the board’s use of it. Kagan said the Court is not the arm of this administration. She did not say the Court is not an arm. The distinction matters because the Court’s structural role — the doctrinal architecture that eliminates judicial mechanisms for litigating executive overreach, the shadow-docket apparatus that delivers emergency relief at partisan-correlated rates, the standing doctrine that contracts for environmental and civil-rights plaintiffs while expanding for religious and political plaintiffs — operates independent of which president occupies the Oval Office. Kagan knows this. The editorial board either does not or will not say it.
A citizen reading the Journal’s column comes away believing the Court is a principled institution taking occasional losses on the merits while applying longstanding conservative jurisprudence. A citizen reading the shadow-docket data, the standing-doctrine asymmetry, the Humphrey’s Executor overruling repackaged as “old principles,” and the eighty percent emergency-application win rate comes away with a different picture. The tariffs case is the exception that proves — and partially obscures — the rule.