Commentary
Three years ago, I wrote a column criticizing Chief Justice John Roberts’s obsessive preoccupation with wanting the public to regard the Supreme Court as apolitical. Ideally, of course, the Court wouldn’t be political. Its role in our constitutional order is to defend the integrity of the Constitution, to never fall under the sway of democratic passions, and to remain above the fray of partisan politics. The goal of Supreme Court justices should never be popularity. It’s the Court’s solemn duty to rule on the constitutionality of laws. If a majority of Americans object to a Supreme Court decision, then the elected branches of government—the legislative and executive—can revise the law to bring it into compliance with the Constitution or (admittedly a far more difficult task) to amend the Constitution so that it authorizes some previously off-limits governmental power.
In the several months before last November’s election, Associate Justice Elena Kagan launched what amounts to a verbal assault against the Court’s independence and its proper place in our polity. Indeed, her remarks were profoundly disturbing, subversive in nature, and potentially dangerous.
In July, Justice Kagan, a Barack Obama appointee, told a judicial conference in Big Sky, Montana, “If, over time, the court loses all connection with the public and with public sentiment, that is a dangerous thing for democracy.”
No, no, no! On the contrary, if the Supreme Court becomes an echo chamber for public sentiment and goes with the democratic flow in its decisions, that’s an exceedingly dangerous thing for our constitutional order. The Supreme Court isn’t supposed to be in sync with democratic sentiments—that’s why justices are appointed for life and not subject to popular elections. The Founders viewed the court as a necessary brake on what otherwise could degenerate into mobocracy—the runaway rule of a democratic majority. For Kagan to assert that the Court should accommodate democratic passions rather than uphold constitutional rights and protections is to remove one of the primary safeguards against constitutional anarchy and the concomitant dissolution of the American republic.
There’s more:
As
reported by The Wall Street Journal, “
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.” If Kagan were truly concerned about the Court’s legitimacy, as she claims to be, she never would have made such a blatantly partisan statement. Let Kagan’s statement sink in: Because certain Court decisions are popular with Republicans and not Democrats, the Court has no credibility. Presumably, then, Kagan has no objections to Court decisions that happen to align with the Democratic Party’s priorities. To echo a statement made above, the role of the Court is to rule on constitutionality, not to be an instrument of either political party.
The fact that a majority of the current justices do not share Kagan’s expansive, progressive beliefs about good governance and sound constitutionality may frustrate Kagan personally, but it provides no justification for damning the court and maligning justices who adhere to a more traditional concept of constitutional law. This is especially so at a time when discontented citizens have attempted to harass some of her conservative colleagues on the Court by gathering around their homes or, in an extreme case, threatening to assassinate Justice Brett Kavanagh.
Kagan continued to impugn the legitimacy of the Court in a talk given in September at Northwestern University Pritzker School of Law. She stated that it’s a primary responsibility of the Supreme Court to follow precedent. This is the dubious doctrine of stare decisis—the judicial equivalent of papal infallibility that I debunked in this space three years ago. A rigid adherence to judicial precedence would mean that the United States would today be bound by the infamous 1896 Supreme Court decision in Plessy v. Ferguson that enshrined racial discrimination and the repugnant doctrine of “separate but equal.” Kagan’s September criticism of her fellow justices who dared to rule on the opposite side of cases from her included the statement, “When the Court gets involved in things ... [that] are very contested in a society, it just looks like it is spoiling for trouble.”
What a bizarre statement! It’s the fact that certain issues are so highly contested that we need the Supreme Court to clarify what is and what isn’t permitted under the current letter of our Constitution. If Kagan really believes that the Court should avoid highly contentious issues, then she should resign her seat so that it can be filled with somebody who doesn’t shrink from that solemn responsibility.
More troubling than Kagan’s apparent pusillanimity about the weighty responsibilities of a Supreme Court justice is her apparent pandering to the democratic/Democratic mob. Given the violence brewing dangerously close to the surface in some of the more extreme partisans in our society today, Kagan should refrain from making any public statements that appear to justify, if not endorse, the passionate partisan assaults and threats against conservative members of the Court.
Imagine how the conservative justices on the Court must feel when they learn of one of their colleagues declaring in public that those justices are wrong to issue rulings that contradict what an apparent democratic/Democratic majority wants. By publicly declaring that her conservative colleagues are wrong to dare to defy the will of the mob and to follow their own conscience in interpreting the Constitution, Kagan (unwittingly, one hopes) could be painting a target on their back. Does she view Justices Sam Alito, Clarence Thomas, et al. as “enemies of the people”? And by questioning the legitimacy of Supreme Court decisions that are highly unpopular in certain circles, is she giving tacit approval to the mob’s aggressive proclivities? I’m not saying that is her intent, but her public statements are dangerously inflammatory, and her colleagues’ safety could be at stake.
The bottom line is this: If Justice Kagan is incapable of refraining from publicly undermining her colleagues and is unwilling to defend the independence of the Supreme Court from democratic majoritarianism, then she should resign her seat on the Court. She needs to choose whether to be a member of the mob or a member of the Court; she shouldn’t be both.
Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.
