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!
105 thoughts on “The Court of Public Opinion: Justice Kagan Suggests that the Court is Losing Legitimacy by Being Out of Step with Public Opinion”
If this is how she judges cases that are presented to the Court, in my opinion she needs to be impeached and she can then join Judge Judy on her TV show. Her credibility as an impartial Judge has just been exposed as clownish and biased.
There is some truth to Kagan’s remarks. Though it is more complex.
Our institutions do not need to and should not conform to public opinion.
But they do need to be seen to be striving for consistent adherence to principles.
The legitimacy of institutions depends on Trust. Trust is NOT about conformance to our opinions.
It is about conformance to principles.
Women, and ten year-old girls, too, possess neither dignity nor agency, human rites to sequester the body of evidence in darkness must be codified in law.
Government agents, criminals, illegal aliens, and self-abortionists have Second Amendment rights, too, a minority report is equitable and inclusive.
Throw another baby on the barbie, it’s over.
A paucity of merit and a propensity to see their jobs as performance for the masses. Justice Kagan, Justice Stench and the new Justice would be far back in the MERIT pack.
Kagan was appointed because she is a progressive female. Sotomayor was appointed because she is progressive female Hispanic latinx. Jackson was appointed because she is progressive black female (Did you know the her uncle was sentenced to life in prison for possession of 31 pounds (!) of cocaine but his sentence was commuted by Barack Obama?). Oh, the burdens of systemic oppression.
Since when was the law based on public opinion – it is or isn’t the law! Get a brain woman!
Justice Kagen is a lawyer who has theoretically read the Constitution. Can she please show us where it says the courts should rule in accordance with “pubic opinion” which changes like the wind? Public Opinion want Biden gone and finds the media untrustworthy. Can we just frog march him out of the White House and shut down the New York Times? Just curious.
What Barny Rubble here really means is that SCOTUS is losing legitimacy by being out of touch with far left wing ideology.
It is greatly alarming to me that Justice Kagen believes that the popular opinion dictates the judicial law not the constitution of the United States. How long has this been the dictating force of the Supreme Court? This is so wrong. Our Country was founded on the Constitution and should be ruled by it. This failure is primary to why our so called leaders have have locked our Country down in masks and quarantine *even though they don’t obey them) and taken away our rights. God help our Country and His people.
“[P]opular opinion dictates the judicial law not the constitution of the United States. How long has this been the dictating force of the Supreme Court? This is so wrong.”
Yet according to conservatives, when it comes to abortion, it is so right.
Pick a lane.
Sam, can you rewrite your thought so it is comprehensible and not misinterpreted?
RE:”Sam, can you rewrite your thought so it is comprehensible and not misinterpreted?” I sense that he is asserting that ‘popular opinion’ was the driving force behind the SCOTUS Dobbs decision. It gives one thought to consider that it might have been better if Dobbs had left well-enough alone. However, had the Mississippi law been allowed to stand, somewhere along the line, its ‘heart-beat provision’ would have been challenged and the Court afforded the opportunity to reexamine Roe. Perhaps, by that time, Biden might have appointed a Justice favorable to his base. We’ll never know. .
what Sam was saying, but that would make him very wrong. They based their decision on what the Constitution meant. I think Sam is having trouble putting his argument together on this subject because there is no together in his argument.
RE:”what Sam was saying, but that would make him very wrong. They based their decision on what the Constitution meant.”…Well that’s the crux of the whole ‘yada yada’ isn’t it. Kagan’s point of view contradicts what the SCOTUS is supposed to be about. That makes her alleged agenda as suspect to one side, as the alleged same of “The Five” is to the other. The right and properness of the decisions depending upon whose ox is being gored. One might argue: “Well you had your fifty years with Roe, the next fifty go to the opposition.” “Deal with it!!”
“Sam, can you rewrite your thought so it is comprehensible and not misinterpreted?”
Here’s the contradiction:
Popular opinion is not the basis of laws.
Popular opinion is the basis of laws, with respect to abortion laws. Those laws are determined by the will of the majority in particular states.
Like I said: Pick a lane.
Thanks Sam, but what you presently wrote is consistent with overturning Roe and leaving the power with the voters and the states, like it was pre-Roe.
Abortion rights being left to the states is a total red herring. If it were authentic reasoning every single state that had trigger laws wouldn’t have timed them around the status of Roe but rather around state wide referendum *after the fall of Roe. in other words, they would’ve left it up to the citizens of the state to decide. Which, markedly, isn’t happening.
So yeah…, states rights = total red herring.
“Abortion rights being left to the states is a total red herring. “
You are a silly non-person. You are mind reading. The number one reason for abortion rights being left to the states are Constitutional reasons for those of libertarian persuasion. The number one reason for abortion rights being left to the states for those anti-abortion is to push to end abortion practices. Both desires are compatible with one another. Most people (right or wrong) want limited abortion. That will vary between areas. Thus aside of Constitutional reasons the states are the right place.
I don’t expect everyone to agree with my belief on abortion.
how in the hell did this woman get approved for the supreme court? IMPEACH HER NOW.
Lost a presidential election? Let’s eliminate the electoral college. Lost a lawmaking effort in the Congress? Let’s eliminate the filibuster. Lost a decision in the Supreme Court? Let’s pack the court. And, just to be safe, let’s grant statehood to DC and Puerto Rico.
Worrying about the Court being popular is akin to worrying about being part of the mob. Courts stand athwart the tyranny of mob rule. Justice Kagen needs to rethink her comment.
I wonder what public sentiment was when Miranda was decided. Does this legal giant think that the public favored forcing the release of murderers that confessed wrongly, told the police incriminating information or even divulged where a body is hidden should have been released because the cops acted in bad faith?
In 2010 Obama’s party lost 63 House seats and 6 senate seats mostly due to Obamacare, does Kagan think that the Roberts fiasco ruined the legitimacy of the Court?
What does Kagan think the popular vote would have been regarding Brown v Board of Education? Maybe it would have supported it…maybe.
Can one of our lesser light liberals commenting here please point out ONE TIME where the liberals on the Court have voted against a Democrat side of an issue. We have many instances of where a conservative justice went against conservative orthodoxy if they believed that it violated the Constitution, but never the other side.
We had some brilliant liberals justices, people like William Brennan, who was liberal but bright, but now we have really lightweight thinkers on the left. I thought Sotomeyer was was the least qualified justice, but now I think it is a 3 way tie.
“ It is designed to defund the smallest and most insular minority when law is on its side.” Please fix. Defund should be defend.
Just further confirms what Obama and everyone else knew when he nominated her, Karan’s a radical leftist zealot who views all legal interpretations through the warped and distorted lens of far left progressive liberal ideology.
Just as Merrick Garland has proven himself to be, as USAG
I thank God every day, for our country having missed that raging bullet.
If the Court is going to be in step with public opinion, the Justices should be elected for limited terms. There is no need to have them appointed for life.
God save us, from the Godless dims. Their only purpose in life is providing abortions. What happened to the rare part?