She begs to differ from John Roberts
She tells it like it is. If the Court is suffering from a crisis of illegitimacy they have no one to blame but themselves:
If Chief Justice John G. Roberts Jr. has chosen to close his eyes to the Supreme Court’s role in its own legitimacy crisis and defend his radical colleagues, Justice Elena Kagan has chosen to be a clear-eyed truth-teller.
On Monday, she let loose a burst of refreshing clarity during a talk at Temple Emanu-El in New York. “Judges create legitimacy problems for themselves … when they instead stray into places where it looks like they’re an extension of the political process or when they’re imposing their own personal preferences,” she said. She added that the public has a right to expect that “changes in personnel don’t send the entire legal system up for grabs.”
That’s as clear an indictment of the six right-wing justices as you are going to hear. Indeed, Kagan made a few irrefutable points while eviscerating Roberts’s feigned cluelessness.
First, she makes clear that the problem is undeniable. The public’s confidence in the court has cratered, and wide swaths of the public believe it is too partisan. Roberts would have us believe the public is simply reacting to a decision it does not like; Kagan scoffs at the suggestion. Something is very wrong, she acknowledges.
Second, she recognizes that there is no mass delusion underlying the public’s frustration with the court. Conservatives used to take responsibility for their actions, but that was before the MAGA era of victimhood in which all ills including their own debacles are blamed on “elites,” “liberal media” or “fake news.” Kagan understands there is a reason for the public’s repudiation of the Supreme Court, and that’s the court’s own conduct.
Third, she identifies the primary catalyst for the court’s present crisis: the gutting of precedent by the newest justices. The dissent in Dobbs made plain the absence of any objective rationale for dispensing with nearly 50 years of precedent on abortion rights. As she and Justices Stephen G. Breyer and Sonia Sotomayor wrote, “The Court reverses course today for one reason and one reason only: because the composition of this Court has changed.” They continued, “Stare decisis, this Court has often said, ‘contributes to the actual and perceived integrity of the judicial process’ by ensuring that decisions are ‘founded in the law rather than in the proclivities of individuals.’ … Today, the proclivities of individuals rule. The Court departs from its obligation to faithfully and impartially apply the law.”
The dissenters called the majority opinion for what it is: partisan hackery. “The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them,” they wrote. “The majority thereby substitutes a rule by judges for the rule of law.” The dissenters correctly predicted the firestorm the decision would unleash, and warned that the majority in Planned Parenthood v. Casey, which refused to overrule Roe v. Wade, had it right. “The American public, they thought, should never conclude that its constitutional protections hung by a thread — that a new majority, adhering to a new ‘doctrinal school,’ could ‘by dint of numbers’ alone expunge their rights.” But, the dissent concluded, “It is hard — no, it is impossible — to conclude that anything else has happened here.”
Kagan went one step further on Monday, pointing out that there is a price to be paid for the attitude that Roe can go by the wayside simply because the right-wing justices have the votes. They may have the votes, but they cannot control the widespread revulsion when the court rips through precedent it dislikes. For if “we’ve got the votes” is the controlling sentiment, then it follows that the justices should be treated like politicians with binding ethics rules, term limits and greater transparency (on decisions to recuse themselves from cases, for example).
Dobbs is not the only reason for the court’s plunge in credibility. The right-wing justices’ rewriting of voting rights law (Brnovich v. DNC), their assault on the administrative state (West Virginia v. EPA), their inconsistent application of state power (New York State Rifle & Pistol Association, Inc. v. Bruen) and their thumb-on-the-scale treatment of the Establishment Clause (Kennedy v. Bremerton School District, Carson v. Makin) have all taken their toll. So has the majority’s manipulation of the shadow docket and partisan screeds by right-wing justices in public settings.
It’s one thing to overturn a long-standing opinion that is antediluvian and hugely unpopular with a large majority of the people. It’s quite another to overturn a constitutional right conferred decades before that is only opposed by a fanatical minority. Do these people think they get their legitimacy from Mitch McConnell and Leonard Leo?