Last week at Catholic University, Justice Elena Kagan criticized the Supreme Court as “deeply conservative” and accused it of fueling tribalism. It was yet another excoriation of the right-leaning Court from one of its three current left-wing justices.
Kagan, who is usually the least vocal and the most intelligent of the leftist trio, does point out some parts of the political culture that are indeed broken. Yet her prescription — putting more decision-making power in the hands of unelected bureaucrats and judges — is erroneous.
Kagan stated, “The court has kind of blinded itself to the very deleterious effect of their rulings on how the political system works and has created a democracy that does not work as well as it should.” That’s an ironic sentiment, considering Lady Justice is supposed to be blind.
“Over the last couple of years especially,” she continued, “both political parties have been engaged in a race to the bottom in terms of doing these partisan gerrymanders ... making what I think is unfortunately a too-polarized country even more so. The people of America look around and think that all this money chasing all these political candidates is a nightmare, and they’re right.”
So, Kagan attacked her conservative colleagues as too biased — while at the same time explaining that issues like gerrymandering should be decided by justices because they are impartial. Make it make sense.
The Daily Signal’s Tyler O’Neal points out that Kagan’s accusations are just false. The conservatives on the Court siphoned power away from unelected bureaucrats and judges and gave it back to the people who elect our politicians. How is that undemocratic?
Kagan also seems to be pushing for a kritarchy, or kritocracy — rule by judges. This is especially true in her views on gerrymandering. She believes the justices should draw the lines because politicians are too partisan. Politicians, however, are accountable to the people they serve, and the people can make them pay at the ballot box. A judge, not so much.
Clearly, Kagan is struggling with a basic understanding of our constitutional Republic, which is accountable both from the bottom up (people’s power to elect and remove their representatives) and from the top down (constitutional constraints that hold elected officials accountable to the law).
The Supreme Court has only just started its new term, and it’s under siege from all sides. By publicly airing her disagreements with her colleagues, Kagan is doing little to bolster the Court’s credibility. She is absolutely allowed to disagree, but blaming the six right-leaning justices for all that seems to be fractious in our political landscape, all while asking for more power, is a perfect example of why the Court is under siege.
This attempt to delegitimize the nation’s highest court lays the groundwork for Democrats to pack it, all while poisoning the minds of our future with that rhetoric.
