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. The Court isn’t supposed to have anything to do with public opinion. It’s supposed to decide cases based on the Constitution, regardless of what anyone else thinks. If public opinion wishes the laws were different, then there’s a voting process to affect the legislative process to get the desired result.

    People are clamoring to erode the balance of powers, throw away individual rights, such as the right to voice biological pronouns, and banish the prosperity of the country. It’s happened over and over again. The Bolshevik Revolution, Mao, Pol Pot. People demand benevolent tyranny for their own good.

  2. The African, Asian, European and Latin American perspective on America’s apoplexy with Roe v Wade are not helping our global standing. Justices Kagan, Sotomayor and the non-biologist womyn are out of step with the world.

    Biden’s Abortion Politics Will Undermine America’s World Standing
    A foreign policy pushing for abortion abroad is also a strategic blunder with long-term consequences. Many countries in Africa, Asia and Latin America have strict limits on abortion, and even most of the free world is closer to Dobbs than to Roe.

  3. Cheney: “Let me thank our witnesses today. We have seen bravery and honor in these hearings. And Ms. Matthews and Mr. Pottinger, both of you will be remembered for that, as will Cassidy Hutchinson. She sat here alone, took the oath, and testified before millions of Americans. She knew all along that she would be attacked by President Trump and by the 50-, 60-, and 70-year old men who hide themselves behind Executive Privilege. But like our witnesses today, she has courage, and she did it anyway. Cassidy, Sarah, and our other witnesses, including Officer Caroline Edwards, Shaye Moss and her mother Ruby Freeman are an inspiration to American women and to American girls. We owe a debt to all of those who have and will appear here.”

    Steve Bannon, one of those 60+ y.o. men who tried to hide behind executive privilege (which he did not legally qualify for), was found guilty today of contempt of Congress. He’s a coward, in Trump terms, a p*ssy. Those who’ve testified have more courage.


    2. So lefty, in your opinion, it takes courage to lie under oath like Hutchison surely did, because you are doing it to ‘get’ Trump, whom you personally hate. You think it’s ok for a committee made up EXCLUSIVELY of avowed Trump haters to make false statements and not allow any testimony that goes contrary to the narrative they want to create, or allow any witnesses to testify that will disprove the approved narrative. And when it is all said and done, and their TDS has been assuaged at taxpayer expense, this collection of Trump haters produce nothing that wasn’t known, and create new lies which are easily debunked. And not a single charge will be filed against Trump. Whether it’s Russia collusion or the laughable two impeachment attempts, you people who ooze hate for Trump just never get tired of losing it seems.

  4. “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.”

    Thank you. The more news I read, the more I hope to come here and get the sane, honest truth.

    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.”

      What’s Your notion of “public opinion?”

      1. Polls get the response that those that commissioned the poll asked for,

        Choose one

        1. I agree abortion must be available up to the moment of birth

        2. I agree abortions must be limited to 15 weeks gestation.

        1. Or, the version of the poll for Gov. DeWine or Gov. Abbott: “I agree that abortion must not be available for a girl who was raped when she was 9 years old.”

    2. democrats don’t have their own opinion. They think what ever the quivering mobmind thinks.

  5. Kagan lifts her skirt and shows us the naughty parts.

    The legislature is more than able to respond to public opinion. More than capable to write laws over ruling SCOTUS. See the Kelo Decision for how that works. Kagan has her knickers in a twist, because her opinion is now meaningless, because it is absent constitutional grounding

  6. Someone should tell Kagan that the public’s opinion is that she should put down the Twinkies.

    1. RE:”Someone should tell Kagan that the public’s opinion is that she should put down the Twinkies…’Holy ‘delusion and confusion’, Batman!” “More like ‘Alice B Toklas Brownies!!”

  7. RE:”Justice Kagan told a judicial conference in Montana that the legitimacy of the Supreme Court is tied to its conformity to public opinion:>” The SCOTUS is about the law, NOT public opinion. If Kagan’s point of view and others of her ilk up there as well, is what moves their decision making, then they ought to quit the bench and advocate elsewhere for their causes.

  8. Thank goodness it’s about the Constitution and the law, not public opinion. Of course, smart people already know that.

  9. Just what I expect from a glorified hack politico like Kaganm when things go against her side.

    One might ask her why the Constitution specifies lifetime appointments for judges. Surely, they would adhere more closely to public opinion if they were up for re-election every 2 or 4 yrs

  10. Kagen shows her ignorance. ” Widely held public opinion” should have ABSOLUTELY NOTHING to do with a Supreme Court ruling. Reflection of public opinion is achieved by voting. The Supreme Court has one job. And one job only. Determine whether the issue put before them is Constitutional or not. This is 5th grade civics.
    Kagen probably not define ” woman” either. But then again to my knowledge, she is not a biologist.

  11. Professor Turley,

    While I agree that her comments fail to recognize the countermajoritarian purpose of the Court (a la “discrete and insular minorities from the Lochner footnote), I think the biggest issue I have with the Dobbs opinion is the procedurally activist nature of Alito’s opinion overruling Roe, considering that was not the question originally presented to the Court when it decided to take the case. Roberts identifies this problem in his concurrence. If a justice rails against judicial activism (as Alito does – for example, in 2005, when he stated to the Federalist Society in 2006: “Life-tenured, appointed judges must exercise restraint in construing [the Constitution]”), then he should not selectively decide to withhold procedural restraint in Dobbs, particularly considering the consequential nature of the case. If you honestly want to be impartial in your critiques of the justices, why have you not discussed this point with respect to Alito?

    You love to point out the faults of the liberal justices, but I have not seen a single article that examines the Roberts concurrence in any real detail. What are your thoughts on his claim that the Court has no procedural authority to overturn Roe? You only mention his “incrementalism,” which may be his purpose for stressing the importance of procedural restraint, but you have not opined as to whether his claim was valid. As a fan of judicial restraint, in my opinion, justices cannot in good conscience opine as to a question that was not before the Court when the Court granted cert. Full stop. They should have sent it back down to the lower courts.

    1. As a fan of judicial restraint, in my opinion, justices cannot in good conscience opine as to a question that was not before the Court when the Court granted cert. Full stop.

      ::eye roll::


      Full stop

      “They Tell Me I Shouldn’t But . . .”: Sotomayor Calls on Law Students to Oppose the Texas Abortion Law

      1. I am confused by your comment. You are making my point by showing another Turley article that attacks a liberal justice. (At least in this case, Sotomayor is honest about her lack of adherence to restraint.)

        Is your point that you agree with Sotomayor that “judicial activism” is just a “ruling you don’t like”

        If you care about judicial restraint, then you have to acknowledge the lack of restraint in the majority opinion in Dobbs. Otherwise, you are just partisan.

        1. If you care about judicial restraint, then you have to acknowledge the lack of restraint in the majority opinion in Dobbs.

          What lack of judicial restraint is reflected in the Dobbs decision? They made a strictly constitutional decision by returning the power to legislate the issue of abortion back to the states and the people.

          1. From Roberts opinion: “When the State petitioned for our review, its basic request was straightforward: “clarify whether abortion prohibitions before viability are always unconstitutional.” This very narrow question was intentional. It increased the likelihood that the Court would grant cert. The State ‘went out of its way to make clear that it was not asking the Court to repudiate entirely the right to choose whether to terminate a pregnancy: “To be clear, the questions presented in this petition do not require the Court to overturn Roe or Casey.””

            It was only after the Court granted certiorari that the state “changed course.”

            As Roberts argues, ‘Our established practice is instead not to “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Washington v. State Grange v. Washington State Republican Party . . . “Following that ‘fundamental principal of judicial restraint,” . . . we should begin with the narrowest basis for disposition, proceeding to consider a broader one only if necessary to solve the case at hand.

            He is therefore specifically calling out the activism of Alito in failing to adhere to “judicial restraint.” If Turley was more balanced in his critique of the Justices, perhaps this important part of the Dobbs decision would be better understood by the public.

            “Judicial restraint” is not simply assessed by asking whether an opinion is a “strictly constitutional decision” (even if that were the case here).

            1. Did Roberts adhere to judicial restraint when he changed the wording of a law to then rule it constitutional? Or was that judicial activism?

              Was it judicial restraint or judicial activism when Roe was decided? The Dobbs majority did not change the meaning or intent of what abortion laws will be in effect. They only ruled that Roe was unconstitutionally decided at the federal level and that the constitutional authority for abortion laws rested with the states and their people.

              If adhering to the constitution is now considered judicial activism and ignoring it is judicial restraint, then may God bless these constitutional activists.

              1. I am not here to defend Roberts in prior cases. That is not the point of the post. My cynical self believes that most justices are largely full of crap and are driven almost entirely by political considerations first and by jurisprudence second. This is evidenced by their failure to routinely adhere to any self-prescribed ideology.

                I am also not here to defend the Roe decision. It was absolutely an activist opinion. That being said, so was Brown v. Board of Education. One can justify activism in that context, of course, for policy reasons. But, that does not mean that it wasn’t an activist holding.

                Regardless, none of that justifies Alito’s activism in Dobbs. I don’t subscribe to “activism is permitted to correct for past acts of activism.” Two wrongs don’t make a right.

                Especially in this context, if the court wished to reconsider an abortion case that unabashedly sought to overrule Roe, then so be it. But, the problem here is now petitioners see a strategy moving forward to circumvent Supreme Court rules: they can get a case before the Court by appealing to incrementalism and then all of the sudden pull a 180 once arguments begin. This is a fundamental procedural problem that is the direct result of Alito’s activism in Dobbs. It makes a mockery of the certiorari process.

                1. I am not here to defend Roberts in prior cases. That is not the point of the post.

                  I appreciate the tone of your posts, as well your opinion. My questions were merely an attempt to understand how you define judicial activism and judicial restraint.

                  Regardless, none of that justifies Alito’s activism in Dobbs. I don’t subscribe to “activism is permitted to correct for past acts of activism.” Two wrongs don’t make a right.

                  Since you persist to use the term “activism”, the term then needs an additional qualifier. If a Court makes a ruling that ignores the constitution, then I would call that political activism. If a Court makes a ruling that adheres to the constitution, then I would call that constitutional activism. Thus, I consider Roe to have been decided based on political activism and Dobbs to have been decided based on constitutional activism. Thus, one wrong overruled by a right.

                  This is a fundamental procedural problem that is the direct result of Alito’s activism in Dobbs. It makes a mockery of the certiorari process.

                  First of all, it’s only a problem for litigants unprepared for it. Secondly, it couldn’t be the result of anything Alitio did as this case went through the certiorari process before Alito’s opinion. Is it going to be a “problem” in the future? Only for the litigants that fail to anticipate all possible questions and arguments.

    2. Interesting take. Having read your post, I would also like to read Professor Turkey’s take on Robert’s, Alito, and others. Good suggestion.

  12. Kagan should be focused on her own legitimacy and that of her handlers named in the following lawsuit.
    Perhaps Professor Turley has not learned of this case

    Federal Court Grants Missouri Attorney General’s Motion to Collect Discovery from Government Officials, Social Media Companies in Free Speech Lawsuit

    JEFFERSON CITY, Mo. – Today, the United States District Court, Western District of Louisiana granted Missouri and Louisiana’s motion for discovery in their lawsuit against top-ranking Biden Administration officials for allegedly colluding to suppress freedom of speech, paving the way for the attorneys general to collect discovery and documents from both top-ranking Biden Administration officials as well as social media giants like Twitter, Meta, and others. The lawsuit was filed on May 5.
    “In May, Missouri and Louisiana filed a landmark lawsuit against top-ranking Biden Administration officials for allegedly colluding with social media giants to suppress freedom of speech on a number of topics including the origins of COVID-19, the efficacy of masks, and election integrity,” said Attorney General Schmitt. “Today, the Court granted our motion for discovery, paving the way for my Office to gather important documents to get to the bottom of that alleged collusion – this is a huge development.”

    “The First Amendment obviously applies to the citizens of Missouri and Louisiana, so Missouri and Louisiana have the authority to assert those rights.”

    The lawsuit, which was filed on May 5, 2022, alleges that the Biden Administration – more specifically President Biden, Press Secretary Jen Psaki, Dr. Anthony Fauci, Director of the now-defunct Department of Homeland Security’s “Disinformation Governance Board” Nina Jankowicz, Surgeon General Vivek Murthy, Department of Homeland Security Secretary Alejandro Mayorkas, and others – both pressured and colluded with social media giants Meta, Twitter, and Youtube to censor free speech in the name of combating so-called “disinformation” and “misinformation,” which led to the suppression and censorship of truthful information on several topics, including COVID-19.

  13. Professor Turley, surely you got Justice Kagan’s comments mixed up with comments by AOC. Please check again.

  14. Kagan doesn’t understand her “job” as a Justice: to adhere to the USA’s Constitution and laws, not to be a toadie to public opinion. Justices and federal and state judges do NOT take an oath to apply public opinion to the cases and controversies before them. Perhaps Kagan’s time would have been better spent sticking with a job somewhere in the executive branch or running for a seat in some legislature! where public opinion can be considered.

  15. “The Supreme Court Follows the Election Returns” as Mr. Dooley said over a century ago, and when the Court fails to stay close enough to the prevailing public view, the results can be very disruptive. The history of the liberal bloc’s attempt to end capital punishment is one cogent example, and the conservative bloc’s attempt to reverse prevailing and well-supported public policy on abortion will, I feel certain, soon provide another. The decision to empower red states to abolish abortion will bring the Court the derision, even of conservatives, because it will be ineffectual, due to the inability of those states to control sales of FDA-approved drugs and interstate travel. Thus, the conservatives’ decision also violates Andrew Jackson’s rule: it’s best that the Court not render decisions that it lacks the ability to enforce, especially if the public’s will to enforce the Court’s unpopular result is absent.

    1. Wow Jim. The court did not make a law they simply said that the states have the responsibility to make laws concerning abortions. The court correctly stated that the court itself does not make the law but the making of law is to be carried out by the legislative process not by royalty sitting on the Supreme Court bench. We understand that you would prefer your kings and queens make the law. Bow down if you so desire.

      1. The Court said that “states have the responsibility to make laws concerning abortions,” to be sure, but they did so knowing the sort of laws red states’ elected representatives so dearly wanted to enact, not least because 12 of those states had already enacted “trigger” laws. Legislatures do make the laws, but subject to the constraint that the laws may not infringe Constitutional rights and protections. The Catholic/conservative bloc failed in that primary duty, due to its desire to reach a predetermined result, one which they concealed during their confirmations. They simply decided to obey the dictates of the minority political base that put them in their seats — the “kings and queens” that you apparently prefer to a principled Court..

      2. RE:”Today’s Turley piece once again tries to pretend that the SCOTUS isn’t political,….” You persist in your opinionating’ and constant raging against Alito, Gorsuch, Barrett and Kavanaugh whilst the most recent 5-4 decision on an immigration question makes clear that the other side consistently votes as a bloc. In their own right, they are just as biased towards their agendas as you charge the others to be. Presently the majority is not in step with your own ox which appears you resent having been brutally gored. Take a sedative.

    2. Your examples show the liberal court stripping States of their power to apply sentencing established by the People.

      The conservative court worked to return to the people the power the constitution identifies as the People’s Power.

      You can try to explain exactly what federal constitutional tenat allows SCOTUS to muck about in either case.

Leave a Reply