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Justice Elena Kagan: SCOTUS Losing ‘All Connection … With Public Sentiment’ Is ‘Dangerous’ for America

Justice Elena Kagan: SCOTUS Losing ‘All Connection … With Public Sentiment’ Is ‘Dangerous’ for America

“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.”

Elena Kagan

Oftentimes when the Supreme Court rules in a way they don’t like, Democrats and their allies in the mainstream media are quick to point to the alleged “public sentiment” of the moment as if to suggest the Justices should take the supposed feelings and opinions of the American people into account when deciding a case.

Indeed, this was President Joe Biden’s reaction to the SCOTUS overturning Roe v. Wade last month (emphasis mine):

[Roe v. Wade] was a decision on a complex matter that drew a careful balance between a woman’s right to choose earlier in her pregnancy and the state’s ability to regulate later in her pregnancy. A decision with broad national consensus that most Americans of faiths and backgrounds found acceptable and that had been the law of the land for most of the lifetime of Americans today.

And in comments made in the immediate aftermath of the Senate rejecting the Women’s Health Protection Act back in May not long after the SCOTUS’ draft majority opinion was leaked, Vice President Kamala Harris proclaimed that “I just presided over the Women’s Health Protection Act. And sadly, the United States Senate did not vote where the majority of Americans are. Which is the majority of Americans believe in a woman’s right to make decisions about her own body.”

While polling on abortion has been at times flawed due to the way questions were worded and at other times has been all over the map, even those who have a mere passing acquaintance with how the judiciary is supposed to work understand that the opinions of the public are not supposed to be taken into account by judges when considering cases that come before them.

And yet taking public sentiment into account when deciding how to rule is exactly what Supreme Court Justice Elena Kagan seemed to suggest in remarks made during a judicial conference last Thursday in Montana after being asked about a June Gallup poll that indicated public confidence in the Supreme Court was at an all-time low.

Here’s what she said:

Speaking in public for the first time since the court’s momentous ruling last month that overturned the landmark Roe v. Wade decision that legalized abortion nationwide, Kagan stressed the importance of the justices staying in their proper roles as judges and not dictating public policy.

“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,” Kagan said at a judicial conference in Montana.

[…]

“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,” added Kagan, who has served on the court since 2010.

Watch:

Here’s a longer version of her comments, where she also talked about how the court should generally stick with “precedent” (wink wink) although not in all cases:

While few conservatives would take issue with Kagan’s comments about how the court should not act in a political or partisan way, her emphasis on winning public sentiment struck many as off . . . way off. And dangerous:

Simply put, if Kagan—who never served on the bench until she was confirmed as a Supreme Court Justice—really feels this way about honoring alleged “public sentiment,” she should be a state lawmaker or a member of Congress, not a judge. That she doesn’t seem to understand this integral part of her role while holding a lifetime appointment to our nation’s highest court is very scary.

— Stacey Matthews has also written under the pseudonym “Sister Toldjah” and can be reached via Twitter. —

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Comments

This comment truly reveals what an abject moron and leftist hack this woman is.

There is a reason that Supreme Court justices are not elected and that they serve for life.

IT IS NOT THEIR JOB to give a shit what anybody thinks.

Their job is to interpret the meaning of the Constitution and to determine if laws fit within the bounds of said document. Full stop.

    Justice Kagan’s comments are not surprising. The decisions of the USSC are favored if the desired result is reached and similarly not favored if they go against the political program of progressive advocacy. Her comments belie her claim that she is not talking about any particular decision or any string of decisions. When she evokes public opinion as she perceives it, it is because judicial decisions went against the result she wanted.

    It has become increasingly clear that progressives have no particular interest in what the Constitution requires, which is another way of saying that they have no particular interest in the rule of law. In their jurisprudence, the law does not dictate the result; the desired result determines what the law is.

    This result-oriented jurisprudence infects courts from the local trial level to the Supreme Court, except for when the court has a six to three majority which wants the law to determine the result. Then it is time to challenge the institution which is valid until it is not. We will hear more of this kind commentary intended to undermine the results that they do not like.

    mcrognale in reply to Paul. | July 25, 2022 at 1:08 pm

    Kagan and Sotomayor were installed on SCOTUS for one reason, to defend Obama’s treasonous legacy. This would have continued if Hillary had been elected. Now they are just two useless unqualified idiots. They can’t be removed so all any thinking human can do is ignore them and hope that they go away of their own free will and accord.

    ConradCA in reply to Paul. | July 25, 2022 at 1:56 pm

    Loosing touch with reality is what progressive fascists do. Like forcing society to embrace the mental illness of trans people. Like forcing Americans t accept that a man can marry a man and a woman can marry a women. Like teaching our children to be racists with CRT.

    Marzgirl in reply to Paul. | July 25, 2022 at 5:26 pm

    Absolutely correct

The dangerous thing for America is having marxist imbeciles like Kagan on the Supreme court.

If there is a broad consensus on an issue, it will be expressed at the ballot box. That is why we vote in this country. We elect politicians to represent us. SCOTUS merely rules on the constitutionality of issues brought to its attention through the court system. Is that so hard for Kagan to understand? It’s not about feelz, it’s about what is written in the Constitution.

DDsModernLife | July 24, 2022 at 6:12 pm

“…a dangerous thing for a democracy.” Perhaps, but we live in a representative Republic with 3 coequal branches of government where my rights are not subject to a simple majority vote.

(I too remember 10th grade gov’t class.)

Antifundamentalist | July 24, 2022 at 6:15 pm

If “public sentiment” is not supposed to drive the decsions of the SCOTUS – The Constitution of the United States is “supposed to be” the basis for every oppinion that they write!

If “public sentiment” runs contrary to what the Constitution says, there is a legitmate way to change that – vote in the congress critters and governors that will pass the Constitutional Amendments that you want passed. – and for those that say “it’s too difficult” – well, Yes, that is a feature, not a bug. In order to change the Consitution, there needs to be a true push for change.

taurus the judge | July 24, 2022 at 6:24 pm

Whats dangerous is a COURT losing all connection with the LAW and the CONSTITUTION and letting mob rule make decisions based on feelings.

We shall know them by their fruits.

Plus, the US is not and never has been a democracy.

If she really believes Roe was accepted by a broad consensus of the American people, she neds to lay off the edibles.

It’s as if all those years of abortion being a hot-button political issue IN SPITE OF</b< Roe, never happened. The only people who accepted it were radical feminists and Swamp critters, neither of whom had any grasp of, nor respect for, honest public opinion.

    CommoChief in reply to McGehee. | July 24, 2022 at 9:48 pm

    All true.

    That’s the real problem. The elite/ establishment is disconnected in every meaningful sense from the rest of US society. They exist in an ideological echo chamber of self reinforcing views without opposition.

    When they tell each other ‘no one I know believes X heterodox thought’ they are being honest. They really don’t know anyone with opposing viewpoints precisely because they have deliberately purged those who hold or are assumed to hold such views from their midst.

    This is a very large problem. The disconnect was encapsulated in the cognitive dissonance on full public display as the election results rolled in Nov 2016. The slack jawed amazement as DJT kept winning States turned into disbelief then to depression all on live TV.

    The d/prog and their media allies know they are unlikely to hold the HoR and Senate but the scale hasn’t been realized. Nor are they prepared for the exit polling. When they realize that more Hispanic voters pulled the lever for r candidates and when black male voters cross the 20% threshold for r candidates the screeching will be loud.

    Maybe the midterm results can cause the long overdue reevaluation of d/prog policies and their unpopularity. Perhaps they will get the message that their most prominent policies are rejected by most people. Not because I care about the d/prog but because I care about the Nation. A party so out of touch that their media allies are exploring cannibalism is quite dangerous.

      ConradCA in reply to CommoChief. | July 25, 2022 at 4:57 pm

      No they won’t reevaluate their ideology. It’s their religion and how they feel like their better than everyone else.

If she really believes Roe was accepted by a broad consensus of the American people, she neds to lay off the edibles.

It’s as if all those years of abortion being a hot-button political issue IN SPITE OF Roe, never happened. The only people who accepted it were radical feminists and Swamp critters, neither of whom had any grasp of, nor respect for, honest public opinion.

The public losing all connection with the Constitution is dangerous.

It should give us pause to think Garland could have replaced Scalia…..

Yet somehow they justify legislating from the bench after issues fail at the ballot box.

rabid wombat | July 24, 2022 at 6:49 pm

Two (Kagan and the wise Latina) have self identified as being unfit by demonstrating a basic lack of knowledge about the role of the court. What is the over and under before we have three?

Meanwhile, that Kagan is in lockstep with the public’s moron contingency is on full display.

This is beyond dangerous. “Consensus” is not how one interprets the law. “Whose” consensus by the way? But then… the law is a “living” document, isn’t it?

LOL! A totally white privileged woman, from her childhood, education (Harvard Law School) , and work history, claiming to know what a connection with the “public” confidence or sentiment is risible.

I’m sure she is as intimately familiar with the sentiment of American citizens who work in the trades, are pro-life, struggle in our urban cesspits, are NRA members, and believe in law and order, as she is with those of editors of the New York Times, her Ivy League professors and graduates, and Pelosi, Schumer and Schiff.

She apparently is as familiar with the former as she is with the Constitution – this is truly a frightening view of our Republic.

Men think structure, women think feelings. One’s suitable for large systems, the other for local systems. Government would be a large system.

Living Constitutionalist, ruling how the people ( Leftists) want. She isn’t the only one either I bet.

If, as they contend, a large majority think that abortion is a-ok 100% the right of a woman they why are they so afraid of it being up for a vote?
Because no matter what they say they know it is not a large majority, maybe not even a majority that believe it to be an unmitigated right 0-9 months.
I live in Kansas and the amount of straight up lying they are doing on the No side of the constitutional amendment is outrageous

Maybe the justices would be a little less disconnected from reality if they hired law clerks from non-Ivy League schools. When you law clerks are all from Yale, Harvard, Stanford, Chicago, etc., you’ll likely not get a very diverse or experienced view of the world, let alone America. A lot of group think at Ivy Leagues nowadays because they are the cloistered class.

And that’s gotta be one of the worst dye jobs and haircuts I’ve seen in a while.

How can the Supreme Court lose connection with the public and with public sentiment when their decisions are leaked ahead of time and are in the news cycle 24/7 and there are non-stop protests, not only at the SCOTUS, but at the justices’ private residences and their lives the lives of their families are threatened?

Of course she feels free to attack conservative members of the court when none of that happened to her.

Silly me, I thought the Supreme Court’s job was to interpret the Constitution as it relates to laws.

Colonel Travis | July 24, 2022 at 9:06 pm

Public sentiment was against gay marriage in much of the country. Courts didn’t care and took away the will of the people, even if they voted on it.

    I don’t remember since I was not very old then but I don’t think that public sentiment was pro Roe V. Wade at the time of that ruling. I may be reading history incorrectly there.

      Milhouse in reply to Martin. | July 25, 2022 at 1:47 am

      It wasn’t, but NARAL lied to the supreme court and said it was. They claimed to have conducted a poll that showed majority support for abortion; but Dr Nathanson later admitted that they had made it up.

George_Kaplan | July 24, 2022 at 9:33 pm

Here’s the problem. Rule right and the Right will support SCOTUS. Rule Left and the Left will support SCOTUS. Which public sentiment does Kagan think SCOTUS should pursue?

healthguyfsu | July 24, 2022 at 10:55 pm

If the American people consider eating her for dinner, she should take that into account before she says no.

2smartforlibs | July 24, 2022 at 11:00 pm

For 60 years the SCOTUS was a rubber stamp for any left-wing agenda they couldn’t get past the people. That’s why you were put there.

If public sentiment was a consideration, we wouldn’t need courts. All laws written by popularly elected representatives would meet the “consensus” threshold. There would be no need for judicial review. Indeed, the courts’ main purpose is to review laws passed by popular consensus to protect minorities from the will of majorities. (And sometimes to protect majorities against particularly vocal minorities.)

henrybowman | July 25, 2022 at 2:16 am

Hey Joe: Pants first, THEN shoes.
Hey, Elena: Amendments first, THEN bloviate about what “we” really want.

Comanche Voter | July 25, 2022 at 7:09 am

Ah Harvard Law School Dean Kagan is channeling Peter Finley Dunne’s Irish barkeep Mr. Dooley who famously opined that the Supreme Court follows the election returns. So if you want to take advice from a drunk Irishman’s surrogate, listen to Ms. Kagan.

“Public sentiment,” like true democracy, is the same thing as mob rule. Not a good way to run a country or society. The rule of law exists so that the mob cannot be swayed to make long-term decisions that are contrary to natural law, reason, logic, etc. That Kagan does not understand this is disheartening.

SCOTUS is supposed to be in touch with the Constitution, not political or public sentiment.

Should Justice Kagan be writing or concurring with the Court’s opinions based on political or public sentiment, Kagan should resign.

Steven Brizel | July 25, 2022 at 9:16 am

Thus, according to Justice Kagan and her view of the US and American politics, the job of SCOTUS is to rubber stamp whatever Congress passes, and the Deep State implements and to forget about whether the Constitution has any applicability while minimizing the rights of individuals under the Bill of Rights

Kagan is as manifestly stupid and ignorant as the dim-witted Latina, and, that’s really saying something.

The entire purpose of giving Article III federal judges life tenure on the bench is to insulate them from the pressures of public opinion — pressures that quite obviously should never affect a judge’s deliberations and rulings, anyway, even in the absence of life tenure.

Courts are not political bodies and should never take public opinion into account in adjudicating cases; only facts, caselaw, relevant statutes and the U.S. Constitution.

That Kagan even implies that SCOTUS should be sensitive to public opinion and perception in hearing cases and in writing opinions indicates that she possesses an appallingly perverse and corrupt comprehension of the judiciary’s proper role in American society.

The real danger is the inbreeding that has existed for decades within the supreme court, if you don’t have a degree from Harvard or Yale you have a minimal chance of making it onto the court, right now 8 of the 9 justices have direct ties to Harvard or Yale, the only outlier is Coney- Barrett. When people talk about diversity on the court this is where they need to start. There are plenty of law schools all across the country that produce graduates who will never be considered just because they didn’t have ties to certain schools.

    GWB in reply to buck61. | July 25, 2022 at 11:18 am

    It’s called a technocracy.
    It’s just like an aristocracy, except the “in” is not blood but credentials (which, oddly enough, often favor blood through ‘legacies’).

    Barry in reply to buck61. | July 25, 2022 at 11:19 am

    I agree with you on Harvard/Yale, but the real problem is the deep state approved list. Not on the list, no go.

    I’d as soon throw darts at a phonebook. The result would be infinitely better IMO.

    Even better, get rid of the lifetime appointments. 10 years max. But I would apply that to every piece of government – elected, appointed, or hired – max 10 years total.

Once upon a time, the US Supreme Court had the grace to remember that it does not have the resources to be in touch with public sentiment. They recognized that Congress has that function, and that is why they stayed out of political questions as much as possible.

I am one that thought that Roe v. Wade was well-decided. It was the first coherent, balanced paper on the topic of abortion that I read. I liked the notion of placing the power to make the decision of whether to have an abortion in the hands of the one person least likely to want it — the mother. It certainly seemed preferable to have the question be decided on a case-by-case basis, rather than as a slaughter of the innocents by the State a la China.

I liked the balancing of the interests, with a bias toward life. That is, once the mother decides to have the baby, the ONLY interest the State had going forward was to preserve and protect the lives of both.

I liked the reference to privacy rights. If people have rights that extend even to their papers, they should have privacy rights in their own bodies.

But too many people simply did not want good and moderate policy. This was true on both sides of the issue. If it wasn’t a political question before, it became one, because the makeup of the next generation is of primary importance to all of us.

Meanwhile, the quality of birth control improved enough to make it reliable, so that the number of abortions dropped over time.

Meanwhile, this country may have destroyed its own fertility. The technology that was rejected by the FDA as too dangerous to be used against HIV was deployed against a disease with the fatality rate of an ordinary flu, and coercion was used to inflate injection rates after good, cheap alternative therapies were developed. The data coming out is ugly, and it points to possible population collapse.

Overturning Roe v. Wade is going to look quaint and out-of-touch very shortly, because the big problem facing our young people now is disability and infertility. The “right” to an abortion is going to trivial compared to the inability to have a healthy baby.

    GWB in reply to Valerie. | July 25, 2022 at 11:11 am

    It was the first coherent, balanced paper on the topic of abortion that I read.
    Then I question your judgment. The decision itself was a horrible mash of lies and monkeyshines, twisted science (they had to search hard – and outside of the field of biology – to find a scientist that would say “We don’t know when life begins”), and conclusions in search of evidence. It wouldn’t even have passed my college writing courses, except for the footnotes.

    GWB in reply to Valerie. | July 25, 2022 at 11:16 am

    I liked the balancing of the interests, with a bias toward life.
    There was absolutely NO bias toward life in that decision. It was all bias toward killing an inconvenient life if the mother so wished.

    in the hands of the one person least likely to want it — the mother
    Not for those seeking an abortion.

    If people have rights that extend even to their papers, they should have privacy rights in their own bodies.
    And you still do. You just don’t have a constitutional right to snuff out someone else’s. And you have to deal with the responsibility you took on by engaging in procreation. Removal of responsibility was the real end goal of universal abortion.

    But too many people simply did not want good and moderate policy.
    Yes, all of them progressives. They are the ones who sought to take an unwinnable policy question and elevate it to the courts to remove it from all consideration by the people.

    And, look to the same people who wanted to remove responsibility (by pushing SCIENCE!) as the ones who pushed SCIENCE! to get us all to take experimental genetic “vaccines”.

    Barry in reply to Valerie. | July 25, 2022 at 11:25 am

    Hogwash.
    Your desire to kill babies overrules any reasoning capability you may posses.
    Until you can admit that killing a baby 5 minutes before the normal birth of the baby when the life of the mother is not threatened (and it almost never is) is just another murder, then there is no point in listening to people like you shrieking about “privacy rights”.

    Rule based upon written law, not upon the whims of the inconvenienced.

    CommoChief in reply to Valerie. | July 25, 2022 at 4:02 pm

    Valarie,

    Roe was not a ‘moderate’ decision nor rooted in any Constitutional text. The immediate impact of Roe was to nationalize abortion and upend Federalism. 63 million abortions and 50 years later we are back to where we began.

    Frankly abortion should be extremely rare based upon all the advances in contraception. Unfortunately it seems to be viewed as sort of sacrament or a rite of passage by some prominent and influential people.

    There are more than 15 effective means of birth control. Then there is plan b. So use birth control and then if you engage in a one night stand take the plan b within 72 hours. No abortion needed because you were not pregnant. Abortion should be restricted to health not used as ex post facto contraception.

but if over time the court loses all connection with the public and with public sentiment, that’s a dangerous thing for a democracy
Since she also thinks we’re a democracy, I would argue she really should be removed from the court for neither understanding her oath, nor upholding it.

    DaveGinOly in reply to GWB. | July 25, 2022 at 12:23 pm

    If there’s ever “bad behavior” in a judge, it’s a voiced willingness to disregard his or her oath of office, and to subvert the purpose of the court.

SCOTUS is to determine if laws passed by Congress and states and activity by the Admin meet the Constitution, then rule accordingly. SCOTUS is not suppose to be political and a Justice would normally answer a question “what is a woman” when asked. In most proper decisions nobody is happy. What has been happening for decades is that Congress has given the Admin control without the laws written to support the Admin activity against the citizens.

We now have a justice who was dumbfounded when asked to define what a woman is despite years of education at the highest levels in the country who is also married to a medical doctor educated at the highest level. If she was unsure at any point she could of easily asked him at some point in their time together.

Actually, she would have been right, if she was thinking of Dred Scott, Plessy v Fergusson and the original Roe v Wade case. Unfortunately, she wasn’t!

Judges aren’t supposed to be in touch with the public, or the culture or a narrative. They’re supposed to unbiasedly interpret law regardless who it offends.

Blackgriffin | July 26, 2022 at 6:54 am

Are we SURE that’s not a man?