Written by Fernando Milanés

24 de agosto de 2022

Supreme Court Justice Elena Kagan said  at a conference that the legitimacy of the Supreme Court is tied to its conformity to public opinion, Reuters first reported.

“I’m not talking about any particular decision or even any particular series of decisions, but if over time the court loses all connection with the public and with public sentiment, that’s a dangerous thing for a democracy,” Kagan said at a judicial conference in Montana.

As a citizen of this country, who is not an attorney, much less one that is a Constitutional expert, I am extremely surprised about Justice Kagan’s comments.   

 Justice Kagan has immaculate credentials and known because her opinions, as a progressive scholar, are judicious, well written and thoughtful.     

 As I understood, “we the people” are represented by the Constitution, and our voices heard through our votes for our legislators (House and Senate) and SCOTUS role is to assure us that the laws enacted conform to the Constitution not popularity.   

James Madison clarified their role in multiple statements, as a summary from the framers confirm:

“The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be, regarded by the judges as a fundamental law. It, therefore, belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body.”   

 The men who gathered in Philadelphia largely agreed that courts would serve as arbiters of what was and was not constitutional. 

The ruling that has provoked this hysteria from the “left”, and influenced SCOTUS members to opine, was the return of limits on abortions (if any) to the States where if anything it becomes closer to public sentiment.  

Even if surprising the initial basis for Wade has been in shaky Constitutional grounds (as stated by Justice Ginsburg and others) since its inception.     

It was based in a right (privacy) not stated as one in our main law as speech, bear arms, freedom to worship, etc.   

The opinion that in several amendments (4-5-14) it was implied in the word liberty, as a lay person I would contest that before liberty is the word life which defends clearly the right to live as it is part of conception.  

The Senate “advices and consents” to the nominee from a duly elected President, a non-controversial and bipartisan decision until Senator Kennedy  stopped Bork’s nomination followed by the Justice Thomas hearing.   

BTW, then Senator Biden led the committee that finally approved Justice Thomas. Then all of President’s Trump’s nominees were faced with an unprecedented circus-like behavior which does not bode well for the idea of making this process decided by the public!   

Even so, pro and anti-abortion women are evenly divided (49% pro-life), so where is the peoples mandate that Justice Kagan desires?   

Her statement, unfortunately increases the state of anarchy we now live and gets us closer to a Venezuelan government where the electoral process, overseers, legislators, and Judicial system, all respond to one person, the President.

For a more learned opinion I recommend Jonathan Turley (Constitutional Professor) on this subject.

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