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Notes -
Yeah it’s a good question. Other outlets like the NYT actually mentioned that Kagan quote. On the other hand, the three he did list without Kagan seem to be the ones many court watchers think will be on the losing side of a 6-3 decision, so maybe that was what he was trying to imply?
I don’t think there are full remarks available online - actually it was also Politico who were the original source on Kagan here and I will say the context does matter. The larger thrust of her answer (as framed in the original source, which is just snippets with paraphrasing or summarization) was about over-politicization of the law more broadly. I note that when Harvard Law Review last year in tackling the nationwide injunction issue, cited the exact same quote, it was as evidence that she wanted to limit judge shopping, not as directly against injunctions, though clearly the two are still intertwined. So I think there’s at least some space for Frost here.
I think an interesting point is also just how the nationwide injunction issue doesn’t quite cut neatly across partisan lines, both parties have been frustrated by it and I don’t get the sense there is broad alignment here, regardless of whatever Trump’s lawyers are arguing. They’ve twisted themselves in pretzels before.
FWIW, in my experience, the conservative/libertarian legal movement has been virtually unanimously against universal injunctions for as long as they've been a thing. Some activists and Republican state SGs will seek them, and I've seen people argue in favor of their use for strategic reasons as a counter to the left, but I'm not sure I've ever heard a principled argument in favor of universal injunctions from the right. While they're a matter of open controversy on the left.
So it's not purely a partisan issue, especially if you only look at government actors, but how to put the universal injunction genie back in the bottle has been a perrenial panel discussion topic at Federalist Society events for at least a decade.
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