Supreme Court Justice Elena Kagan made a curious and concerning comment this week about how the Supreme Court’s legitimacy depends on the consistency of its judicial opinions with public opinion. It was a comment that seemed consistent with the criticism of Sen. Elizabeth Warren (D., Mass.) that the Court was improperly departing from “widely held public opinion.” Warren used the complaint to justify her call for raw court packing to produce an instant liberal majority. I am frankly astonished by the statement of Justice Kagan which runs against the entire purpose of the Court as, at times, a countermajoritarian institution designed to follow the constitution rather than the polls.
Justice Kagan told a judicial conference in Montana that the legitimacy of the Supreme Court is tied to its conformity to public opinion: “I’m not talking about any particular decision or even any particular series of decisions, but if over time the court loses all connection with the public and with public sentiment, that’s a dangerous thing for a democracy.” She added “Overall, the way the court retains its legitimacy and fosters public confidence is by acting like a court, is by doing the kinds of things that do not seem to people political or partisan.”
In Federalist 78, Alexander Hamilton explained that lifetime tenure was to insulate the court from manipulation or influence:
“In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.”
The Court was designed to defy public opinion. It was designed defy everyone and everything other than the Constitution. It was that countermajoritarian role that allowed the Court to end segregation and confront other prejudices in our society. It is designed to defend the smallest and most insular minority when law is on its side.
In fairness to Justice Kagan, it is certainly true that many justices seek to minimize the transformative role of the Court in areas of deep political disputes. The ultimate example of an incrementalist is Chief Justice John Roberts. What is ironic is that I would not put Justice Kagan in that camp. I have little question that Justice Kagan would vote for Roe or other such precedent against the weight of public opinion and would overturn Dobbs in one year or ten years.
I was also disappointed by the comment because other justices have responded to calls for court packing and the harassment of their colleagues by reaffirming the legitimacy of the Court. The recently retired Justice Stephen Breyer and the last Justice Ruth Bader Ginsburg were outspoken in swatting back such critics and calls for court packing. Justice Sonia Sotomayor has also spoken against court packers.
Many jurists and law professors do not believe that the Court should consider public opinion in rendering its decisions. Federal judges are given lifetime tenure to insulate them from such pressure or considerations. The legitimacy of the Court depends not on being consistent with public opinions but the Constitution. This is a particularly important moment to emphasize as bounties are offered on the movements of justices and one justice was recently the target of an alleged attempted murder.
In the end, I am confident that Justice Kagan would agree that it is more important to be principled than popular. Otherwise, we are left with a “Wicked” Glinda Court rather than a body designed by the Framers:
When I see depressing creatures
With unprepossessing features
I remind them on their own behalf to think of
Celebrated heads of state
Or ‘specially great communicators
Did they have brains or knowledge?
Don’t make me laugh!