Constitutional Law, Politics, Supreme Court

The Court of Public Opinion: Justice Kagan Suggests that the Court is Losing Legitimacy by Being Out of Step with Public Opinion

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”

  1. I didn’t know that a member of SCOTUS had to be in line with public opinion but in fact she is right and you are wrong!

    1. Justice Holmes, at one time slavery was considered to be correctly allowed by public opinion. Public opinion agreed that the Jews were evil. The question that must follow has to be, was public opinion correct in these instances? Judging by your past comments I would expect your response but this is a supposed intelligent person sitting on the highest court in the land saying that the court must take public opinion into account when making its decisions. We see that you are concerned.

    2. The majority of citizens and administrators of the French Revolution or 3rd Reich Germany would no doubt agree with the above sentiment and Justice Kagan. Public opinion is a general term and transitory in nature, subject to the whims of different ages and times. It is more often controlled politics than by stringent analysis of its construct.

  2. I’m not talking about any particular decision or even any particular series of decisions, but if over time the court the public loses all connection with the public and with public sentiment constitutional purpose of the court, that’s a dangerous thing for a democracy.

    Kagan is 180 degrees off with her judicial philosophy. I would think the Senate Judiciary Committee would have or should have discovered that in her confirmation hearing. We don’t need court packing, we need a revival of civics education in the body politic.

    1. we need a revival of civics education in the body politic.

      Civics is very hard to find in public schools. That is by design.

      1. Civics is very hard to find in public schools. That is by design.

        No doubt. The results prove the Lincoln quote true more than ever: The philosophy of the school room in one generation will be the philosophy of government in the next.

        1. RE:”Civics is very hard to find in public schools. That is by design.” Civics is now mandated by law to be taught in Florida schools through high school. That’s by design as well.

            1. RE:” Once again…THANK GOD for Florida.” I know that there are many down here who don’t share your gratitude and don’t wish our Governor well. However, they are benefitting from the pluses notwithstanding. Perhaps they should find their way elsewhere….L.A.; S.F; Chi-town, NYC??? I don’t think so. The concerns are that they, and others of their ilk who are escaping the aforementioned, or running for office to represent this state, will bring the Biden touch with them.

  3. Though I think her comment is off by a mile and is disconcerting coming from someone in her position, the fact remains that a very vocal minority backed by oligarchs does not constitute ‘public opinion’. Seriously: there is such little variation in talking points at this point among Democrats, there are no other words for the that organization other than ‘authoritarian’, ‘ideology’, and ‘regime’. The fact that none of this matters to them brings us to another word: ‘fascist’. *Actual* public opinion (the kind that isn’t measured by media outlets or government organizations) shows that in most places that people are pretty fed up with the likes of her.

    1. Pew Research Center: “While public support for legal abortion has fluctuated some in two decades of polling, it has remained relatively stable over the past several years. Currently, 61% say abortion should be legal in all or most cases, while 37% say it should be illegal in all or most cases.” Where do your statistics on the so-called “very vocal minority” come from?

  4. The supreme court is not a reflection of popular opinion. It was created to be just the opposite, an anchor to our FOUNDING principles, with the thought that the mob would eventually want impassioned and illogical laws and therefore, the ability of the court to rein in that impulse. For a supposed “legal giant” she wears her prog credentials openly. That, alone, displaying her partiality to an ideology not within the constitutional ethos, should render her opinion null.

  5. Has Kagan articulated the test she would apply to determine “fundamental” unenumerated rights protected by substantive due process?

    Relying on Glucksberg, the Dobbs court declared the test to be deeply grounded in historical tradition and implicit in the concept of ordered liberty (whatever that oxymoron might mean). Under this test, abortion is clearly not a fundamental right. It is unlikely that same-sex marriage or homosexual conduct would be either. Contraceptive use in the home might be. Those three rights must rely on the five-part test for stare decisis to survive if they were ever to reach the Court.

    Brown Jackson repeated the Glucksberg test when asked about this in her confirmation hearing.

    Do Kagan or Sotomayor have another test?

  6. Majority of American believe Biden is incompetent. He should be removed!

  7. So no rule of law….just ballot stuffing and MSM determine what happens

  8. Really you are surprised….That a Fascist expresses Fascism

    I don’t say this causally. Democrats are a RAW party of Fascism using every lever of power to destroy and steal!

    Democrats are FIGHTING A CIVIL War and you complain about a mean tweet from Trump!

    WAKE UP AND FIGHT!

  11. Professor Turley: “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.” Ditto.

  12. Kagan is in misstep with the general public because she supports abortion until birth and without restrictions.

  13. time for her to step down. public opinion has nothing to do with how SCOTUS rules. confirms once again why it is important to elect Presidents who will appoint originalist to the court rather than to fill a checkbox on the diversity and equity checklist

  14. It would seem she identifies herself as being the lightweight of the Court by making such a statement.

    However, she may have some serious competition with the latest addition to the Court who without having taken a seat found herself (may I use that pronoun to describe her) running up on the rocks of reality…..first when she stated she did not know how to define the word “Woman” then again when she spoke out to turn on political matters.

    What we see being manifested is what happens when identity politics is the primary consideration for choosing nominees to the Court…..neither Race or Plumbing should be part of the criterion used to select a Justice.

  16. Which public opinion? Because the social media and news doesn’t allow the conservative view to be heard. Ms Kagan is full of communism.

    1. Judy says:

      “Ms Kagan is full of communism.”

      When in doubt, shout “communist.”

      1. RE:”“Ms Kagan is full of communism.”When in doubt, shout “communist.”….When it looks like it, and smells like it, one doesn’t step in it. It’s tough to scrape off one’s shoes.

          1. RE:”Scatological Trumpist humor typical….” More like caution to anyone walking the streets of a Democrat-controlled L.A. or S.F., I’d say.

  17. She is one of the least qualified persons to have ever been appointed. I would expect nothing less. Almost Souter-esque

  18. She is an absolute idiot, to make such a statement. The USSC is not supposed to follow the left or, the rights opinions or what may seem the majority of public opinion. Seeing as she is a bonafide leftist, she really means the court is not doing what the left, wants done.

  19. The court is supposed to ignore public opinion and is supposed to follow the constitution. PERIOD. SHE should be impeached. She probably doesn’t know what a woman is either. Ignorance is bliss.

  20. We need to put some children on the supreme court bench. That would be a benchmark and not a bench fart.

    1. I would have expected such nonsense from a lesser mind like Sotomayor and maybe Roberts, I am shocked to here this from Kagan, who is supposed to be a legal giant.

      1. LOL…. the democrats operatives on the court now…are brainwashed idiots

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