The Patriot Post® · Justice Kagan Questions Her Own Legitimacy

John Roberts was right and Elena Kagan is wrong.

Last Friday, the Supreme Court’s chief justice offered his first public remarks following the Court’s recently concluded (and highly productive) term. In doing so, as our Nate Jackson noted, Roberts stood firm against leftist critics who’ve been unable to control their emotions about the Court’s 5-3-1 originalist majority and are now trying to undermine the institution itself.

“The Court has always decided controversial cases, and decisions always have been subject to intense criticism and that is entirely appropriate,” Roberts began. “But I don’t understand the connection between the opinions people disagree with and the legitimacy of the Supreme Court.”

Roberts was being kind. He understands perfectly well that connection. Anger management never has been a Democrat strong suit, but the chief justice didn’t want to come straight out and scold them for their maliciousness.

In any case, Kagan must not have gotten the memo about the Court’s legitimacy. “When courts become extensions of the political process,” she told a friendly audience at Northwestern University School of Law, “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.”

Kagan sounds like a disgruntled middle manager, tossing back a couple of drinks and trashing her employer. Not only did she acknowledge that the Court has an image problem, she said it deserves to have an image problem.

Funny — not funny — but we don’t remember Antonin Scalia or Clarence Thomas or Samuel Alito ever trying to undermine their institution like this or ever questioning the legitimacy of our nation’s third branch of government when they found themselves in the minority.

Kagan should put a sock in it, and she should instead encourage her side to stop doing unconstitutional things — things like, oh, encroaching upon the citizenry’s First and Second Amendment rights, and granting almost unlimited governmental powers to unelected bureaucrats, and finding nonexistent “penumbras” and “emanations” from which to assert that we can murder our babies right up until the moment of birth.

Here we have the source of Kagan’s complaint, although she never came right out and said it: Dobbs v. Jackson Women’s Health Organization, the Court’s monumental decision last term to finally overturn the half-century-old abomination of Roe v. Wade and send the issue back to the states where it always belonged.

Kagan’s frustration was perhaps clearest when she said, “If one’s own conscience is opposed to the requirements and responsibilities of the job, then it’s time to leave the job.”

Hear, hear.

Kagan, though, is right that the abortion issue is a triggering one. Indeed, it’s the preeminent emotional issue of our lives, and it’s likely to remain so as long as it’s legal and as long as there’s a God in Heaven who made us in His image. But that doesn’t mean that Roe was right on the law or that Dobbs is wrong on the law or that the Supreme Court is somehow illegitimate for finally righting this wrong.

“Crazy idea,” says the Wall Street Journal editorial page, “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%.”

But beyond Dobbs, Kagan is likely working the refs ahead of another hugely consequential Supreme Court decision. As the editors continue: “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.”

To which we say, Enough.

Feel bad about yourself, Justice Kagan. And resolve to be better. Or, as you yourself put it, find another job.