Supreme Court Justice Elena Kagan



Photo:

POOL/REUTERS

Justice

Elena Kagan

is the leading liberal on the Supreme Court now that Justice

Stephen Breyer

has retired, and she no doubt thinks of herself as an institutionalist. So it’s a shame to see her lending an assist to the current political attack on the High Court’s legitimacy.

“When courts become extensions of the political process, when people see them as extensions of the political process, when people see them as trying just to impose personal preferences on a society irrespective of the law, that’s when there’s a problem—and that’s when there ought to be a problem,” the Justice said Wednesday at Northwestern University School of Law.

***

Political? Hmmm. Whom do you think she has in mind? Justice Kagan didn’t mention Dobbs v. Jackson Women’s Health Organization, the case in which a majority overturned Roe v. Wade. But you don’t have to be

Oliver Wendell Holmes

to know that was the context, and her remarks feed the Democratic and media project to tarnish the current Court.

But let’s examine that “political” charge. If the majority was being political in Dobbs, it failed in spectacular fashion. By returning abortion to the realm of politics, rather than judicial ukases, the Court has galvanized Democratic voters. Republicans who supported the end of Roe are on the backfoot politically, and it could cost them control of Congress.

As for abortion and judging, note that Justice Kagan doesn’t defend Roe on the merits. Neither does any honest judge or legal academic on the political left. That’s because Roe’s logic was entirely political, an invention of Justice

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Harry Blackmun,

a Republican appointee. The lead dissenter was

Byron White,

a Democratic appointee. In agreeing with Justice White’s critique of Roe, was Justice

Samuel Alito

being political—or correcting the historic mistake that Justice White called out at the time?

Justice Kagan would no doubt say, as the three dissenters did in Dobbs, that Roe had become a durable precedent. But when are judges justified in overruling an old precedent?

According to Justice Kagan at Northwestern, one such situation would be “when you’ve discovered that the doctrine that the Court has created is entirely unworkable, is usually the expression,” meaning that “a complete mess has been created.”

Please see page 56 of Dobbs to find Justice Alito’s analysis of the practical difficulties of asking judges to figure out what constitutes an “undue burden” on abortion rights. States kept challenging that standard because the Court itself was never clear about the undue burden test after three Justices concocted it in Planned Parenthood v. Casey in 1992.

“What makes a court legitimate,” Justice Kagan also said, “is that the court is acting like a court. It’s doing something that’s recognizably law-like.” Justice Kagan doesn’t have to agree with the majority opinion in Dobbs, but it’s wild to watch her talk as if it doesn’t exist. Spend an hour or so digesting Justice Alito’s 87-page opinion, and our guess is you’ll find that it’s plenty “law-like.”

Crazy idea, but maybe what’s really hurting the Supreme Court’s perceived legitimacy is that the Democratic Party, led by President Biden, is running a political campaign against it. Consider Gallup’s poll taken in July, after Dobbs, which shows approval of the Court at 43%, “statistically unchanged” from last year’s record low of 40%. That headline figure “masks big swings among partisans,” Gallup says. Republican approval is up 29 points to 72%. Democratic approval is down 23 points to 13%.

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Justice Kagan is no political naif, and it’s too bad she’s feeding this narrative about the Court by suggesting her conservative colleagues do something other than follow the law as they see it. To return Justice Kagan’s disfavor to her colleagues, our guess is that she was playing some politics herself at Northwestern.

She’s warning the Justices that the “legitimacy” attacks will continue if they dare to rule in ways that progressives don’t like. She’s probably thinking in particular about the looming case on racial preferences at Harvard and the University of North Carolina.

Justice Kagan is no doubt frustrated that she isn’t in the majority in many of the most significant cases, but now she knows how

Antonin Scalia

and

Clarence Thomas

felt for decades. They never attacked the legitimacy of the Court. Justice Kagan would be wise to follow their example if she wants the public to respect the Court when her turn in the majority comes again.

Wonder Land: The administrative state has created ideological divides that will take a long time to undo. But a recent ruling on climate change may help resurrect the decisive role that substantive politics played at the time of America’s founding. Images: Reuters/Getty Images Composite: Mark Kelly

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Appeared in the September 16, 2022, print edition as ‘Elena Kagan’s ‘Political’ Court.’


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