Said Justice Kagan, quoted in "Kagan calls leak of draft opinion overturning Roe 'horrible' and expects investigation update by month's end" (CNN).
It's traditional to critique judges for deciding cases according to their political preferences instead of strictly saying what the law is.
And it's traditional to emphasize the way it looks to people and the attendant threat to the Court's power: If we don't look as though we're doing what we're supposed to do — or what people have long believed we are supposed to do — then we'll lose "legitimacy."
But how do people know whether judges are doing it right? They can't — and won't — read the Court's lengthy written justifications for the momentous decisions they impose on the people. Who can they trust? No one! Not even themselves.
So judges had better be careful to look as though they doing it the "legitimate" way and not just following their own personal and political preferences.
Kagan's point — courts need to look legitimate — stands in contrast to Chief Justice Roberts's recent comments about legitimacy: "[S]imply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court." And: "You don't want public opinion to be the guide of what the appropriate decision is."
Kagan concentrates on whether the judges are deciding cases properly, and Roberts concentrates on whether people are properly assessing whether judges are deciding cases properly.
I suspect that if confronted, both Kagan and Roberts would agree that judges should decide cases properly and that people should criticize decisions based on whether judges decided them properly.
But that's agreement at a high level of abstraction. And I doubt if anyone really believes judges can drive all personal preference out of their decisions. But if they could, I'll bet people wouldn't like that either.
६२ टिप्पण्या:
With a shared vision of social rules legitimacy wouldn't be an issue. AFAIK the SC wasn't controversial until FDR-era activism and discussion of court packing to get the New Deal done. Before that, the SC mostly stayed within the lines of its constitutional description.
FDR's introduction of ends-justify-the-means politics to the SC set in motion these (ultimately esoteric) debates about the nuanced logic of the court. The bottom line is whether one believes that congress sets laws or whether the court can/should work around elected officials when the votes aren't there.
End runs provide short-term gains but are are obviously a step toward total societal collapse, as some people stop playing by the rules and start discounting/de-humanizing their opponents. Checkers turns into Chess -- which pawn should I sacrifice today?
Not news. Human nature. Human history. Just work to avoid guillotines and Reigns of Terror.
Kagan is just a sore loser.
She lost on the merits and now she is complaining that Dobbs wasn’t properly decided because it was political.
From the beginning, Roe was criticized as bad law because it took that issue from the states. Dobbs returned the issue to the states. That’s federalism.
The Left never rests. For them, if you don’t agree with them you are illegitimate or a fascist. The Left simply can’t tolerate diversity of ideas. The amazing thing is that that the Left has zero self-awareness. The former Dean of the Harvard Law School is the Queen of Cluelessness.
My perception is Judges think their feet don't touch the ground. They live in a world of words that they twist stretch and bend to their prejudicial views and microscopic kernel of humanity.
That said, they are a necessary counterbalance. The ebb and waxing of the tides will not care about such ephemeral whining and kvetching when your ox has to take one for the team.
I agree with won't but can't?
Anyone can read the opinions. They are public records. I've read a few. I'm not a lawyer but I've found them reasonably understandable.
I probably miss some legal nuance but I think I get the gist.
The audio of the oral arguments is posted on line pretty quickly. I've listened to dozens of these and find them interesting. Most of the time they are pretty easy to understand and follow.
More disturbing, I've noticed a growing trend over the past few years to identify who appointed a judge in media stories. Eg; "judge Smith, an Obama appointee, ruled..."
I think that does a lot to tube the impression of partisanship. That is on the media, not the courts.
Unless there is evidence partiality.
John stop fascism vote republican Henry
I'm sticking with my theory: Sotomayor leaked the Dobbs draft to the WH in order to give them a heads-up to what was coming. It was meant to give the admin time to prepare, not to go public, but the WH decided to leak it to the press when they needed a distraction back in April.
Roberts has done more to undermine the court's legitimacy through his cowardice than basically any other justice. Despite his claims about not wanting public opinion to guide decisions, he absolutely seems to live in fear of taking on controversial topics. But avoiding those issues means that he concedes them to the radicals willing to push boundaries of the law and constitution. It's a game of chicken and Roberts will always flinch.
Roe was unconstitutional.
Dobbs fixed it.
Kangan is not happy about it.
Elena Kagan was Bill Clinton's lawyer. Yes, during that thing.
Didn't Sandra D argue that appearance of corruption can be worse then the thing itself?
Kagan calls leak of draft opinion overturning Roe ‘horrible’ and expects investigation update by month’s end
From the style book:
- Quotation marks can be used to show sarcasm. More specifically, they can be used to convey the idea of "so-called," "alleged," or "supposed." When used for this purpose, quotation marks are sometimes referred to as scare quotation marks…Scare quotation marks are also used to show that a word in not being used in its literal sense.
The right to abortion on demand was clearly embedded in the US Constitution. It's in Article ... uh ... uh ...
Those damn Republican fascists!
They want to destroy democracy.
"Substantive due process means we can do whatever we want. Like standing the definition of marriage on its head."
I think Mr Wibble's theory is likely correct, that the leak started as a heads-up to the Biden admin who then decided it would be a good distraction, though I also think it not out of the realm of possibility that Roberts either directed the leak or at least knew about it.
I think the quotes around horrible are more intended to indicate that Kagan volunteered the word in a statement or answer to the question rather than sarcasm. It would have been nice had the article included some context around the single word quote.
Mr Wibble: " It's a game of chicken and Roberts will always flinch."
Roberts isn't flinching. He's actively engaged in protecting New Soviet Democratical legislation while attempting to appear "moderate".
Roberts has also fully enshrined the "principle" of New Soviet Democratical Presidents have powers beyond those specified in the Constitution while republican Presidents do not have even the powers specified in the Constitution.
Thats why obama could violate procedures to enact unconstitutional laws by stroke of a pen but Trump was not allowed to rid us of unconstitutional laws by stroke of a pen.
And Roberts has also rewritten laws for the dems, as a courtesy, to help the dems keep what they want.
rwnutjob said...
Roe was unconstitutional.
Dobbs fixed it.
Kangan is not happy about it.
Re-written in the format of an English language haiku:
Roe was very bad law.
Dobbs made constitutional.
Kagan has a sad.
At least Kagan is honest about how awful the Supreme court looks.
John Roberts is probably the worst Supreme Court Justice this country has had. He is at least the most dishonest.
These scum weasels spend 500 pages trying to avoid the black and white words right in front of them.
The Supreme court needs to be a much larger cohort and it needs to be populated with non lawyers.
Lawyers seem to be unable to read.
The ebb and waxing of the tides will not care about such ephemeral whining and kvetching when your ox has to take one for the team.
You crack me up sometimes, Howard.
What happened in 1973 was that a majority of the US Supreme Court justices felt that state legislatures should not ban abortion entirely. Rather, abortion should be legal during at least the first three months of a pregnancy.
Therefore, those justices concocted -- from the US Constitution's supposed "emanations and penumbra" -- some legal sophistry that enabled those justices to impose their own personal opinion about abortion law onto all the states.
Now Justice Kagan is upset that that 1973 bogus, political ruling has been overturned. She is upset because she personally thinks that abortion should be legal during at least the first three months of pregnancy.
Kagan gave up her game. Despite being hailed as a brilliant lawyer from Harvard, we may as well have a graduate of Cal State Dominguez Hills in her seat. Same rulings, just less eloquent words to justify the political end.
This is why the SC should push back on Congress to do its job and carefully consider the laws it passes without leaving the specifics to the administrative state.
The brilliant Founding Fathers gave us a system that works. But today we have legislators who don’t hold hearings on ptopsed legislation and don’t even read the bills, and judges who do a political calculation of how they will decide a case and then backfill with pretty words and often transparently unconstitutional reasoning. We just need legislators and judges who are up to the task, but sadly not to be found with a few exceptions.
And when they instead stray into places where it looks like they are an extension of the political process
Hilarious. Total lack of awareness. Judges don't "stray" into the political process. They LIVE there!!
The WI Supreme Court is the worst. They are elected via a political process. WI Justice Brian Hagedorn purposefully misrepresented himself as a "conservative" to get his seat. Then he betrayed everyone who voted for him, and were stuck with the asshole until 2029.
Hagedorn is probably in the top three reasons the 2020 WI election fraud worked.
The biggest threat to the court's legitimacy is the media, which generally ignores the 8-1 & 9-0 decisions, where the liberals and the conservatives work together, and the 6-3 decisions that don't break along ideological lines. No, the media only talks about the 5-4 decisions and relentlessly emphasizes the ideological divisions so that the casual observer is unaware of any decision other than the 5-4 right-left split.
Is this meant as a slap at Justice Thomas for being married to a white, conservative, activist wife?
Discuss
Perhaps if the court did not split so often politically, the people wouldn't think the court was so political.
See also, politicians publicly demanding the Court do their work for them.
Well-put, Howard. Unfortunately, in practice, judicial flaws are often more stupid than lofty.
We've had a couple of judicial meltdowns in Atlanta that actually involve the tv show, Real Housewives of Atlanta (RHOA). I mean judges partying with the Housewives instead of showing up for work; being represented by one of the Housewives; all with ties to Biden's almost VP pick Kasim Reid. The only penumbra is why we don't have a Real Judges of Atlanta reality show. Meanwhile, the Atlanta DA continues to beclown herself by focusing investigations on burglaries of RHOAs and bringing down Trump, as other crimes skyrocket.
Off topic, my Amazon pad auto-spellcheck changed "penumbra" to "penis in tea." I thought if I wrote this down, it might move to someone else's brain.
I don't think the determination of whether judges are letting their personal beliefs dictate their opinions need be difficult. Are there judges or commenters who say, "I think abortion should be legal, but Roe v. Wade is wrongly decided"? Yes, starting with John Ely. Are there judges or commenters who say, "I think abortion should be illegal, but the Constitution protects it"? I have never heard of such a person.
Correlatively, there are definitely judges and commenters who think that flag burning is wrong, but that the First Amendment protects it, whereas I never heard of any espousing the opposite position.
They can't — and won't — read the Court's lengthy written justifications...
Many of the SC's decisions* are very lengthy, with space- and line-occupying footnotes and citations interrupting the flow of text, making them inordinately confusing and time-consuming to read and fully understand by layfolks (like me.)
* majority opinion, along with sometimes multiple concurrences
OTOH, if a case interests me, I prefer to read the dissents, sometimes the concurrences, as that's where I find the more intriguing bits of argument and logic and law. Discussion, to me, is most interesting when sides/parties actually argue points of law -- that's where I reach the fullest understanding.
Kevin Ring's compendium of Justice Scalia's dissents makes for marvelously entertaining and educational reading.
Kagan is absolutely correct: The reason the Roe court was illegitimate is precisely because it was creating law where none existed. Inventing rights in the Constitution which are not there plainly in its text.
This court has put that wrong right; and has other wrongs to put right yet to come.
But what Kagan is actually saying is wrong: She's not saying courts should be unbiased, but that they should work on their subtlety. Make it look better. Make it appear that they are unbiased when they clearly are - in order to trick people.
Yeah, that's the ticket. Fucking idiot.
The Supreme Court already knows who leaked the decision. And it's never going to tell us who did it.
Mark my words.
The Supreme Court already knows who leaked the decision. And it's never going to tell us who did it.
Mark my words.
Perhaps if the court did not split so often politically, the people wouldn't think the court was so political.
My understanding is that the 5-4 political splits are the rarity. Most cases are 7-2, 8-1, or 9-0.
I think we can all agree their jurisprudence is nakedly political and our jurisprudence is scrupulously legitimate.
I have always said that constitutional rights emanating from the penumbras of the Bill of Rights are obviously totally legitimate.
Kagan's point — courts need to look legitimate —
And it will, if you just all agree with me, right Judge?
So easy. So very easy.
Roberts is so weak.
He's like the Romney of SCOTUS...always seeking approval and always coming up short.
"Kagan's point — courts need to look legitimate..."
...sounds like a corollary of 'perception is reality.'
"It was many years later, in the 1980’s to be exact, that this debate took on a whole new meaning when the American political strategist Lee Atwater said simply and succinctly: 'perception is reality'."
I say: reality is reality. Perception is perception. They are not the same thing.
"when they don't do things that are recognizably law."
SCOTUS is not bound by anything or anyone. It sometimes pretends, to make its decisions appear to be "recognizably law." But it is a political, not a legal entity.
Judges and politicians are (or at least were) capable of understanding each other, even across partisan divides, better than we kibitzers often are, because they understand the limits of the job and have to work with each other. Once this looked like corruption, even treason, a conspiracy against the public, but now that we are so bitterly divided, it doesn't look so terrible.
It is impossible for the courts to have the legitimacy that Kagan desires when every confirmation process is explicitly political, with almost every judge being accepted or rejected on a party line vote.
Great point, Lurker. Incumbents frequently conspire to stay in power. They know what people will be fooled or irrationally swayed by. We have the exact government that we deserve. This is just as true for the worst and the best. The intersection of the Pogo and Peter Principles.
The Robert’s quoted comment and the Kagan quoted comment are both correct. Picked out by themselves they seem at odds and I think that was the author’s intent. Sew more discord. Just like commentators always referencing who appointed a justice, and yes, reporting on the 5-4 decisions when year to year something like 90% of the cases are 9-0, 8-1 or 7-2.
There are always questions I wish these interviewers/commentators would ask, but don’t, and subtleties I wish they would try to draw out, but don’t. So you get cherry picked quotes from a justice who rarely speaks publicly (at least to the press).
Scalia used to say if you don’t like a decision take it up with congress and tell them to write a better law. All the court does is stamp it “unconstitutional” and return it. Court doesn’t make law, can’t (or shouldn’t) make law.
But the left wants to use the court for its politics while (as usual) blaming the other side for doing so. Just the other day the VP said this is an activist court. But I don’t think she understands what that means. Saying a decision was wrong and overturning it, saying a law is unconstitutional and overturning it is NOT being activist, it’s actually quite restrained. If congress has the votes and writes a law within the confines of the constitution, the court can’t (shouldn’t) do anything about it. But congress doesn’t want to do that because (a) they’re grifters who don’t care about you, they only care about keeping their jobs, and (b) they don’t want the issues “resolved” by legislation because then they don’t have the political issue to run on.
Also why they never passed any legislation to guaranty access to abortions. They wanted the political issue all these years.
The most activist, political, justices are the ones appointed by the left. Sotomayor? Breyer? At least Ginsburg and Kagan are/were smart. Pretty sure Katanji Brown-Jackson is gonna be to the Supreme Court what Kamala Harris was/is to the Presidential ticket/administration.
One result, intended or not, prepared the left for the decision and prevented a massive outbreak of violence that would have dwarfed J6. What resulted was targeted violence against the 'bad people' so that doesn't count.
I think the last time the Supreme Court members all agreed 9-0 was in reversing Weissmann's conviction of Arthur Anderson in the Enron scandal. That should have been a warning about him but the Democrats still turned the "Russiagate" case over to him. Mueller was a senile figurehead.
Madison's constitution created a set of conflicts and tendencies that created friction and lessened the potential to have one group damage freedom. The unelected lifetime judges were a good move but also imperfect. They cure a lot of the power grabs made by the executive and legislature, but are also subject to their own politics and power grabs.
It's not perfect, but better than any alternative I have heard of. Politician's tendency to want it changed is just a sign that they want to steal freedom. Just leave it alone and let it work.
Touting "reliance on precedent" as being non-political is a fig leaf. Especially in the case of the Dobbs dissent, it meant she didn't have to make the argument and properly do her job. She could just say that Roe already decided everything, even though it was the jurisprudential equivalent of 2+2=5. "OH, we know 2+2 isn't *really* 5, but women have relied on it being 5 for 50 years now! We have to keep pretending it's 5 because men fifty years ago said it was!" If that really is the "least political" and "most judicial" option, she has a dim understanding of what she is supposed to be doing, which is, at least with Dobbs, finding abortion in the Constitution somewhere. The fact that she couldn't do that, or never tried, betrays just who on the court is behaving politically.
I love Kagan's writing, but this is ridiculous. Recall her statement in the SG confirmation hearings: "There is no federal constitutional right to same-sex marriage."
Of course she acted as a legislator and not a judge in Obergefell when she overruled precedent with no explanation and imposed her own personal preferences.
Compare Obergefell v. Hodges, 576 U.S. 644, 675 (2015) (“Baker v. Nelson must be and now is overruled”)
There is a difference between judges political preferences affecting their legal agendas and their political preferences resulting in their social agendas affecting their legal agendas.
For example, Clarence Thomas whose conservatisism usually gives rise to strict construction of the language of the Constitution versus Sonia Sotomayor whose progressivism usually gives rise to disdaining the clear language to achieve some preferred social result.
This is illustrated in a Dobbs versus Roe comparison. In 1973, lawyers were shaking their heads because Roe could not be justified by the language of the Constitution. In 2022, baby killers take to the streets because they don't like the result in Dobbs regardless of the language of the Constitution.
The people who are now questioning the legitimacy of the Court are the same people who endorse the double standards employed by federal law enforcement. When the government, including the courts, follows the law, it is legitimate. When it does not, it is illegitimate. Except for the Supreme Court, our federal government is illegitimate.
Well, as the populace has become more fractured, the habit of using the law to "make the world good" rather than simply developed rules to peaceably settle disputes has made the court more political appearing. Since the New Deal, the law has been more about taking from some to give to others while benefiting the office holder. Creating winners and losers in legal interpretation rather than the common good.
Thus at first the American people got the notion of law-making; of the making of new law, by legislatures, frequently elected; and in that most radical period of all, from about 1830 to 1860, the time of “isms” and reforms — full of people who wanted to legislate and make the world good by law, with a chance to work in thirty different States — the result has been that the bulk of legislation in this country, in the first half of the last century, is probably one thousandfold the entire law-making of England for the five centuries preceding. And we have by no means got over it yet; probably the output of legislation in this country to-day is as great as it ever was. If any citizen thinks that anything is wrong, he, or she (as it is almost more likely to be), rushes to some legislature to get a new law passed. Absolutely different is this idea from the old English notion of law as something already existing. They have forgotten that completely, and have the modern American notion of law, as a ready-made thing, a thing made to-day to meet the emergency of to-morrow.
--Popular Law-making: A Study of the Origin, History, and Present Tendencies of Law-making by Statute
by Frederic Jesup Stimson (1910)
There has never been any golden age when the SCOTUS wasn't being sharply criticized -- be it John Marshall and the federalists, Taney and the Dred Scott debacle followed by the Slaughterhouse Cases and Plessy, the New Deal and the switch-in-time, the free-wheeling Warren Court and now a retrenching Roberts Court. It would be easy to pick other periods resulting in the same kinds of criticisms by one side or the other. By definition, each case typically ends up with a winner and a loser, and when the stakes are high (and highly politicized) there are few good losers. Nothing they can do to prevent being attacked publicly, perhaps unfairly, and often by the country's top leaders -- e.g., Obama in his SOTU and now Biden (or whoever is pulling his strings) about Dobbs.
So all the talk about the Court's legitimacy and how to preserve it is just so much tiresome crap. The justices (like all other judges) need to focus on doing their job as best they can, and let the chips fall where they may. And the chips will definitely fall.
"But that's an agreement at a high level of abstraction." Yes, it is, and I appreciate that analysis. Your use of "high level" is exactly what I'd always considered the phrase to mean. Until I started working in transactional law and found "high level" analysis to mean "from a high view" and not in-depth. An overview. Very confusing to me at first and I still don't like that use.
If I am not mistaken, the idea that the Supreme Court has both the power and the responsibility to determine whether laws are consistent with the Constitution, is itself an invention of that court. The Constitution creates that court, and describes its jurisdiction, but not its function.
Nobody outside law school gives a damn how judges make their decisions. All that matters is the result.
Michael K said...
“I think the last time the Supreme Court members all agreed 9-0 was in reversing Weissmann's conviction of Arthur Anderson in the Enron scandal.”
Michael, I realize that may have been sarcastic, and sadly, lots of people think 9-0 is rare, but it’s not. And that decision overturning the Arthur Anderson Enron conviction came down in 2005.
Scotusblog.com has all kinds of stats on each sitting of the Supreme Court. Last stat pack archive I could find there shows an annual average (since 2005) of 20% of cases decided 5-4, and an annual average (since 2010) of 43% of cases decided 9-0. (Not sure why the different reporting periods).
Last term alone (October 2021 term) there were 18 cases decided unanimously and only 10 decided 5-4. (63 total decisions).
I'm for Roy Moore for SC. He's a hack but he's our hack. And isn't that really what it's all about?
I think our biggest problem today is that neither House of Congress is willing to do the work of legislating. I don't see how but it would be nice if the court should shove them back into doing their jobs.
As for Chief Justice Roberts I really don't think it's fair to put him in the same class as Roger Taney who wrote the Dred Scott decision. That must be the worst decision ever made by the Supreme Court. Roberts is just spineless.
@ Jupiter You are correct. In Marbury v. Madison Chief Justice Marshall asserted that the Supreme Court could determine the constitutionality of US laws. As I recall this power of judicial review was pretty much fashioned out of whole cloth. Anne can correct us.
Nothing quite screams stealing two seats to install activist, outcomes-oriented judges by an extremist ideological faction like holding up the Garland nomination for a year and cramming through the Handmaid Coney Barrett nominee right as Trump was about to lose re-election.
You might as well have linked the Al Franken video if a realistic and rational take on how the court’s legitimacy suffers from Republicans upending the political norms that determine its composition. And after that, check out what Sheldon Whitehouse can tell you behind who really pulls the strings behind the dark money controlling this effort.
Both sides play the same political game that Kagan is now crying about. What she is really crying about is the conservative majority. When the liberals held the majority, they were fine with creatinglaw from whole cloth. Roe itself was found in the penumbra of the right to privacy. Fitting that this important right was found in the shadows of a shadow.
hpudding: "And after that, check out what Sheldon Whitehouse can tell you behind who really pulls the strings behind the dark money controlling this effort."
Ah yes, Sheldon of the all white sailing club!
Yes indeed, our racist democratical (are there any other types?) Sheldon Whitehouse knows quite alot about that evil "dark money"....probably because he receives so much of it...and proudly so.
Whitehouse himself hasn’t sworn off accepting political donations from some of the biggest and most powerful dark-money groups on the left. In fact, he’s said he hopes groups like Demand Justice and the League of Conservation Voters donate to his campaign.
Kagan knows that all the media are on her side so the appearance of 'legitimacy' favors her and applies pressure to the other justices.
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