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.
The Backstory is here: https://www.theblaze.com/news/elena-kagan-supreme-court-public-sentiment?
Photo H/T: The O.C. Register
Replies
That's a great ide!
The Supreme Court is not a court of public opinion. It is supposed to rule on whether an act or bill is Constitutional. But it is not only Kagen that should be impeached - try Sotomayor also - and I would bet Brown-Jackson is going to be as bad or possibly worse. Impeach all the Liberal Judges! They have all proved to be anti-American and anti-Constitution over and over and over again!
Martha, they are also anti-God and they will pay for that in eternity, with space in the Lake of Fire!!!!!!!!!!
I would have no argument with all of those being impeached but it would be a waste of time with Biden still in office and the Sentate controlled by the democrats. We need both houses of congress in control of the Repblicans. The senate must reduce the voice of the demorats. Without a change in at least one chamber we will have to face another two years of the democrats corrupt and disasterous policies.
Got news for Justice Kagan YOUR JOB HAS NOTHING TO DO WITH PUBLIC OPINION. YOUR JOB IS THE CONSTIUTION OF THE UNITED STATES OF AMERICA.!!!! AND TO DEFEND THE SAID CONSTIUTION AS WRITTEN!!
Sort of reminds me of when Earl Warren quoted a Swedish law as a reference in one of his SCOTUS opinions. She thinks of the Constitution as a living document, easily interpretated, ignoring the fact it is established law and only changeable under specific and very restrictive constitutional guidelines.
Do they even test these Supreme Court nominees on the constitutions laws? Do they know what they are supposed to base their votes on. I know Clarence Thomas does so maybe he should give them a primer on the Constitution.
Shirley, I seriously doubt if any demoncrap (liberal. Progressive) has even read or understood the Cnstitution. Those that think they are there to rule on feelings need to be impeached yesterday!
She is another who believes democracy (otherwise often mob rule) is preferable to the Constitution and our established Republic. Wonder how her opinion would be accepted in countries like China and those other nations controlled by tyranical despots.
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