Thomas Gallatin / October 3, 2022

Supreme Court Legitimacy, Alito Style

After Justice Elena Kagan again questions the Court’s legitimacy, Justice Samuel Alito pushes back.

It’s not fun being on the losing side. And when it comes to politics, that losing side often comes with more than simply hurt feelings. Elections bring an array of issues that directly impact the lives of millions, which is part of the reason why arguments surrounding political issues can become so heated and divisive. Furthermore, it’s one of the reasons why people get frustrated when politics enters spheres it formerly had not occupied.

One of those important spheres where politics shouldn’t have entered is the judiciary system and, more specifically, the U.S. Supreme Court. Its term begins today. Unfortunately, over the years, the highest court in the land has been increasingly viewed as politicized — a Court divided between conservative and liberal justices. However, despite the fact that this conservative vs. liberal divide in SCOTUS did exist, it did not affect the justices’ own internal collegiality. While the justices recognized their colleagues’ differing views, they all famously got along quite amicably. There was a sense of gravitas around the role they all as a collective unit played within the greater U.S. government, and they sought to guard that role from the negative influences of the constant public political bickering that marks Congress.

Sadly, it appears that collegiality has begun to fray. Liberal Justice Elena Kagan has begun attacking the Court, effectively asserting that it has become politicized and therefore illegitimate. It’s apparent that Kagan has been raising this charge not because there is actual evidence supporting it but because several of the Court’s recent decisions — such as Dobbs — didn’t go her way.

Last week, Kagan spoke at Salve Regina University in Rhode Island, where she once again insinuated that her colleagues were simply doing the bidding of the Republicans. She then correctly observed, “The thing that builds up reservoirs of public confidence is the Court acting like a court and not acting like an extension of the political process.” And yet earlier this summer at a judicial conference, Kagan suggested the opposite view: “If, over time, the Court loses all connection with the public and with public sentiment, that is a dangerous thing for democracy.” Where have we heard this political talking point of “danger to democracy” before?

Chief Justice John Roberts has pushed back on Kagan’s “illegitimacy” canard by stating, “Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the Court.” He further argued that the Court “doesn’t change simply because people disagree with this opinion or that opinion or disagree with the particular mode of jurisprudence.”

Justice Samuel Alito also jumped in to rebut Kagan’s smear. “It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit,” he said. “But saying or implying that the Court is becoming an illegitimate institution or questioning our integrity crosses an important line.”

What is critical to know — as it would go a long way toward reestablishing in the minds of many Americans that the Court as an institution won’t be intimidated by politically motivated harassment — would be the naming of the individual who broke with protocol and leaked the draft opinion on Dobbs. If justice is to be served, that individual needs to be exposed and held accountable. Ignoring it will only serve to create a precedent, pave the way for future leaks, and further erode Americans’ confidence in the Supreme Court.

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