It sounds incredible, but recent comments by President Joe Biden and U.S. Supreme Court Justice Elena Kagan suggest that they harbor doubts about the legitimacy of the current high court as our system’s independent, impartial, and final arbiter of constitutional and interpretation of federal law issues. They seem to have come this close to buying into the progressive notion that the Supreme Court is just another partisan, political branch of government deserving none of the deference historically accorded to it.
Soon after the U.S. Supreme Court’s decision overturning Roe v. Wade, we expressed our dismay with the widespread savaging of the Court by a number of elected Democrats who strongly disagreed with the decision. We recalled the old saw that while in the past there may have been public disagreement with the particular line of legal reasoning employed by the justices, the legitimacy of the Supreme Court itself and its members was rarely put into question. It was a given that everyone was acting in accordance with their understanding of the law.
But this all ended in the aftermath of Dobbs v. Jackson Women’s Health Organiation. When a preliminary draft of the decision was infamously “leaked” in April 2022 and it appeared that Roe would be overturned by a 5-4 vote, all heck broke loose. There were fierce attacks on the Court and against those justices that were depicted as poised to strike down Roe.
For instance, protesters descended on Justice Brett Kavanaugh while he was dining in a restaurant, criticizing his legal reasoning and application of constitutional principles and raging about his supposed right-wing sellout of a woman’s “right to choose.” It was as if they believed he was intellectually free to choose an alternative analysis that would have brought him to the conclusion they favored and reaffirming Roe. This sort of thing directed at the other four anti-Roe justices – Alito, Barrett, Gorsuch, and Thomas – as well.
Then came the astonishing comment by Biden, who called the Dobbs decision was “wrong-headed” and became identified as leading the charge against the Court. “What we’re witnessing wasn’t a constitutional judgment,” he said. “It was an exercise .in raw political power”; it represented a choice “between the mainstream and the extreme.”
Later, he announced he was busy at work trying to fashion remedial legislation and executive orders. “We cannot allow an out-of-control Supreme Court, working in conjunction with extremist elements of the Republican Party, to take away freedoms and our personal autonomy.”
But even the Biden excesses did not prepare us for the recent comments of Justice Elena Kagan in response to remarks by Chief Justice John Roberts. The exchange on Supreme Court decision-making was illuminating.
A little over a week ago, Justice Roberts expressed concern publicly that the Supreme Court’s reputation is being unfairly undermined.
“I don’t understand the connection between opinions people disagree with and the legitimacy of the court,” Justice Roberts told a judicial conference in Colorado. “If the court doesn’t retain its legitimate function, I’m not sure who would take up that mantle. You don’t want the political branches telling you what the law is, and you don’t want public opinion to be the guide of what the appropriate decision is.”
“Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court,” he said.
Although he didn’t directly mention the Roe/Dobbs cases, he was obviously addressing the criticisms aimed at the Court over its recent abandonment of the 50 year-old Roe precedent.
Justice Kagan went the other way, suggesting that reversals of precedent are ordinarily not a good thing and do damage to public respect for the Court when they seem directly tied to changes in the Court’s membership:
If there’s a new member of a court and all of a sudden everything is up for grabs, all of a sudden very fundamental principles of law are being overthrow, are being replaced, then people have a right to say: What’s going on there? That doesn’t seem very law-like.
We think that Justice Roberts has the better of the arguments. Precedent is surely the bedrock of an orderly system of laws, but abandoning it when independent judgment leads you in a different direction is also fundamental to a democracy and a legitimate exercise of judicial authority – no matter how it looks to those who disagree with its application in a particular instance.