Kagan v. Roberts: Justices Spar Over Supreme Court's Legitimacy
By: Jess Bravin (WSJ)
S E E D E D C O N T E N T
WASHINGTON—During the summer months when the Supreme Court was out of session, new arguments arose between the justices themselves on whether the court's legitimacy, in the eyes of the American public, was imperiled after it overturned longstanding precedents in its most recent term.
Liberal Justice Elena Kagan, in a series of public appearances, said the court's conservative majority had diminished the high court's credibility with decisions that track Republican priorities. Chief Justice John Roberts, speaking at a separate event, retorted that the court's decisions have no bearing on its legitimacy as it carries out its mandate to interpret the Constitution. On his side was fellow conservative Samuel Alito, author of the majority opinion in the term's landmark case overturning Roe v. Wade, eliminating a woman's constitutional right to an abortion.
Across the court’s history, “The very worst moments have been times when judges have even essentially reflected one party’s or one ideology’s set of views in their legal decisions,” Justice Kagan said last week at Salve Regina University in Newport, R.I. “The thing that builds up reservoirs of public confidence is the court acting like a court and not acting like an extension of the political process.”
Chief Justice John Roberts has said disagreement with an opinion ‘is not a basis for questioning the legitimacy of the court.’ PHOTO: MATT ROURKE/ASSOCIATED PRESS
In July, the Barack Obama appointee, part of the court’s three-member liberal minority alongside Justices Sonia Sotomayor and Ketanji Brown Jackson, told a judicial conference in Big Sky, Mont.: “If, over time, the court loses all connection with the public and with public sentiment, that is a dangerous thing for democracy.”
Chief Justice Roberts earlier this month took issue with Justice Kagan’s critique.
“Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court,” he told a judicial conference in Colorado Springs, Colo. The high court’s role, grounded in the Constitution, ”doesn’t change simply because people disagree with this opinion or that opinion or disagree with the particular mode of jurisprudence,” he said.
In a comment Tuesday to The Wall Street Journal, Justice Alito said: “It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit. But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.”
The chief justice and Justice Kagan declined to comment.
Recent polls have shown sharp drops in public regard for the court, largely among Democrats. Americans’ opinions of the Supreme Court are the worst they have been in 50 years of polling, according to a new survey from Gallup being published Thursday.
The court’s June decision in Dobbs v. Jackson, which eliminated a woman’s constitutional right to have an abortion and left the question of abortion’s legality to the states , has been a particular focus of Democrats’ ire. A recent WSJ poll found that 83% of Democrats said they were more likely to vote in the midterms because of that ruling, as opposed to 31% of Republicans.
Other decisions taken by the court, such as its 8-1 denial of former President Donald Trump ’s emergency request to block a House panel from obtaining White House records related to the Jan. 6, 2021, attack on the U.S. Capitol, drew more support from Democrats and independents.
Justice Kagan was on the losing side in nearly every major case last term: not only the landmark opinion overruling Roe v. Wade but also decisions that expanded access to concealed weapons; limited the Environmental Protection Agency’s power to fight climate change; and increased religion’s presence in the public education system.
The majority concluded that Roe had been wrong and that a half-century of federal abortion rights created no expectation that women should be able to rely on access to the procedure in the future. In the other cases, it found that earlier historical examples indicated that New York’s 1913 state law setting cause and character requirements for concealed-weapons permits violated the Second Amendment; that Congress can’t delegate “major questions” such as greenhouse-gas regulation to federal agencies; and that public schools must permit public prayer by school employees on the clock, as such devotions couldn’t reasonably be seen as coercive to students.
Days after Chief Justice Roberts’s remarks in Colorado Springs, Justice Kagan suggested that the majority sought those results over consistent application of legal methods conservatives often say they follow. A justice shouldn’t be a “textualist just when it leads to the outcomes that you personally happen to favor,” she said at Northwestern University.
She also said her focus wasn’t on the popularity of particular decisions but rather on how the court could retain public confidence even when it makes unpopular rulings.
Court precedents, she said, should be respected except in the most extraordinary circumstances. “It just doesn’t look like law when some new judges appointed by a new president come in and just start tossing out the old stuff,” she said, in an apparent reference to the positions of Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, who were all confirmed during President Donald Trump’s single term in office.
Justice Kagan added that courts should act incrementally rather than issuing sweeping pronouncements that disrupt the legal order, a point often made by Chief Justice Roberts, including in his explanation for not joining Justices Alito, Clarence Thomas, Gorsuch, Kavanaugh and Barrett in reversing Roe v. Wade’s half-century precedent.
Democratic presidents, like Republican ones, choose justices in the hope, not always realized, that they will take judicial positions in line with the party’s positions.
“When you get down to specific cases, it’s not clear what Kagan would have wanted from her colleagues other than they would agree with her,” said Adam White, a senior fellow at the American Enterprise Institute. “The conservatives on the court would say, ‘We absolutely are trying to pursue a principled methodology, and that’s precisely why it’s more difficult to find areas of compromise.’”
Some legal scholars believe the current liberal wing, given its regard for precedent, would in the majority move more incrementally against conservative decisions rather than overriding them outright.
“It’s not just that you have to imagine a supermajority liberal court, but also a court that had a very skeptical view of stare decisis,” said Duke law professor Marin Levy, using the legal term for standing by precedent. “That’s hard to imagine with this set of justices.”
In contrast to the Dobbs decision, which fell along ideological lines, the court has generally sought consensus for major changes in law. When holding school segregation unconstitutional in 1954, all nine justices, appointees of both Democratic and Republican presidents, joined Chief Justice Earl Warren’s opinion in Brown v. Board of Education. In 1973, the Roe decision itself was decided 7-2, with a majority including appointees of Franklin D. Roosevelt and Richard Nixon.
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Here Kagan argues against the use of political ideology in Court decisions:
Across the court’s history, “The very worst moments have been times when judges have even essentially reflected one party’s or one ideology’s set of views in their legal decisions,” Justice Kagan said last week at Salve Regina University in Newport, R.I. “The thing that builds up reservoirs of public confidence is the court acting like a court and not acting like an extension of the political process.”
On the other hand, Kagan seems to be saying decisions should be popular:
In July, the Barack Obama appointee, part of the court’s three-member liberal minority alongside Justices Sonia Sotomayor and Ketanji Brown Jackson, told a judicial conference in Big Sky, Mont.: “If, over time, the court loses all connection with the public and with public sentiment, that is a dangerous thing for democracy.”
The Judicial debate also involves the question of precedent. Does overturning precedent threaten the Supreme Court’s legitimacy?
(It is strange that we didn't hear such concerns when we had so many activist courts.)
"Judicial activism" is a term under much debate and used by both sides to defame decisions that are not 'liked'. SCOTUS has swung like a pendulum throughout its history and currently it is firmly entrenched within 'conservative' thought. With a 6-3 majority it should come as no surprise if the term 'activist' is now applied to the ruling majority.
All in all a good article by the fellow behind the establishment of Raymond Chandler Square:
You mean a classification now most recently used by the left. The difference is clear. A justice who follows the Constitution as it is written, even when it hurts, is acting as a Justice is supposed to. A justice who interprets the Constitution as it now "should be" is an activist.
Yes ... I said that. @!@
But which has been worn out by both sides whenever they disagree with a decision.
True. My analogy would be this:
Somewhere in Baseball heaven John Wakenfuss and Hank Aaron meet: They both claim to have hit 755 career home runs.
I hope you catch my drift.
I catch your drift, but I'm not sure I'm buying it.
It's a lot like Baptists complaining about "cancel culture". Who are we kidding? We've been canceling shit since 1800. We've canceled everything from drinking to dancing to Disney.
I can't tell you how many prominent Republicans I've heard bitch about "activist courts". Obamacare surviving was "judicial activism". Every pro transgender decision has been blasted as "activist". Any time Trump didn't get his way we heard about an "activist court".
People claim that all the time. Quite possibly the only thing left and right agree upon is that the SCOTUS is activist.
You do recall that the boy who cried wolf was right at least once?
All things are not equal, especially when it come to activist judges.
I can't tell you how many prominent Republicans I've heard bitch about "activist courts".
The justices who voted for Roe v Wade were mostly Republican appointments. That was what Republicans called the most activst court of all.
Who were they activists for?
Abortion.
That's a very good point.
To quote a hero of the left: elections have consequences. When Obama said that he was scolding Republicans regarding his economic proposals.
Now that elections have given us a more conservative SCOTUS I guess elections only have consequences when they favor liberals ....
The Kagan/Trump approach, which boils down to the Court's legitimacy depends on its acting in the interest of a person or party essentially removes the role of judging from the Supreme Court. It doesn't take a judge to rule by opinion poll or according to party activists. But that's what Kagan wants, not judges, but super legislators not bound by the Constitution or the laws passed by the people's representatives, who act however their personal moral compass dictates. If Kagan wants to be a Senator and pass laws, run for the Senate and act according to what the polls tell her to. She's a judge, and judges don't issue rulings based on public opinion samples.
Of course, the SCOTUS is BEYOND requiring the respect of the citizens. Only GOD is entitled to criticize the SCOTUS, and HE hasn't done so yet, so the SCOTUS is PERFECT.
Trump's three appointees...
But then there's Clarence Thomas....
The SCOTUS is a wonder to behold.
And who gave us all this crime & violence?
"33 people were shot in Chicago this weekend.
Atlanta’s overall crime rate is worse than Chicago’s.
And Philadelphia’s experienced over 300 more homicides this year than Atlanta. What do they all have in common? They’re controlled by the Left"....Rep Jim Jordan
Here is John Fetterman saying he is “happy” to release a first-degree murderer who stabbed a man **26 times** with garden shears, then tried to hire a cop to kill his accomplice.
And let us never forget what the left did for women!
"A biological female transitioning to become a man beat a record-setting women’s-competition biological male who transitioned to become a female in a college swim meet held on Saturday.
Yale’s Iszac Henig, a biological female competing in the women’s competition because she has not completed the one year of hormone therapy required to compete as a male, beat Lia Thomas, a biological male who recently set records competing as a woman for the University of Pennsylvania, National Review reports :
“Earlier this season, Thomas set pool, program, and meet records, 38 seconds ahead of the next-closest female Penn swimmer in one event.
“On Saturday, though, Thomas fell short in two races; one in which Thomas placed fifth and Iszac Henig — another transgender athlete who is presently making the transition from female to male — came in first, and then once again in a relay in which Henig bested Thomas by over a second.”
What does your deflection have to do with the 'left'?
Then there is the American left's policy on the border:
"President Biden defended his management of the US-Mexico border crisis Tuesday by claiming that record-high illegal border crossings are because people are “fleeing communism” — despite the fact that most migrants are not.
Biden spoke after US Customs and Border Protection said about 158,000 migrants were caught in August, bringing the 11-month tally so far for fiscal 2022 to more than 2.15 million .
Biden invoked “communism” despite the fact that just 35% of migrants in August left the authoritarian socialist governments of Cuba, Nicaragua and Venezuela.
“There are fewer immigrants coming from Central America and from Mexico. This is a totally different circumstance,” Biden said at the White House when a reporter asked why “the border [is] more overwhelmed under your watch.”
The green fanatics on the left also gave us this:
Catch you in the AM Buzz.
No they didn't.
It would be great if you were ever correct about the LEFT.
Please READ!
Why would I waste my time on any of your links which never support your claims?
That image doesn't open for me. You have to save it to your computer picture library as a recognized format like jpg or png then post it from there. And by the way, Yahoo, which was neither blocked nor censored in China, stopped operating anything in China a year ago which really pissed me off because I had a yahoo email address and in replies to various websites they require it to be by means of yahoo.
It's only Biden's high gas prices.
Now that OPEC and Putin are cutting back on production, prices may start climbing again - bad news for the Democrats in November, since so many Americans vote more because of their wallet than with their head.
Prices will rise.
If Biden only left American oil production alone, it wouldn't be happening. It's not like looking for Walleye in Lake Erie.
If so, then that WOULD qualify as voting with their head instead of their wallet. As a Canadian, I have always resented the cancellation of the Keystone XL pipeline, although I don't know if what it transported was important for local use, but was helpful even if it freed up others from exporting in order to produce for local use. I think pipelines are safer than rail cars, but as we now see are very vulnerable to sabotage.
By the way, when you're talking to me, a walleye is a pickerel.
Whatever they are, I think they are the sleekest of fresh water fish. There was a big scandal recently involving them being filled with weights to win a contest. Also at Lake Erie
Guess you missed this seed I had posted..(LINK( ->
I saw it. Do you have any idea how many contests those cheats had won?
That's a great picture of you btw....the day you went after Pickerel and came back with Bass!
They didn't "win" them, they ROBBED them.
No, we were fishing for bass, not pickerel. My grandmother used to make delicious gefilte fish with pickerel and whitefish.