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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