The Supreme Court this summer handed conservatives a victory nearly 50 years in the making when it overturned Roe v. Wade. Liberals, including Supreme Court Justice Elena Kagan, are taking the defeat poorly — so poorly, in fact, that they’ve taken up questioning the legitimacy of the court itself.
This type of reaction is par for the course for liberals.
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“When courts become extensions of the political process,” Kagan said this month in a not-so-subtle reference to the court’s recent decisions, “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 continued, wink-winking at the idea people may stop respecting the court’s legitimacy should the people suspect new rulings are the product of recent changes on the bench. Wherever would these people get such an idea? Perhaps from a disgruntled Supreme Court justice?
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“If there’s a new member of a court and all of a sudden everything is up for grabs,” said Kagan, “all of a sudden very fundamental principles of law are being overthrown, are being replaced, then people have a right to say: What’s going on there? That doesn’t seem very lawlike.”
For constitutionalists and longtime pro-life activists, the court’s July ruling in Dobbs v. Jackson Women’s Health Organization came as a shock. Many were convinced the court would simply go along with precedent rather than reverse course entirely. But then the court announced its decision, addressing at long last the constitutionality of the matter. The majority opinion, written by Justice Samuel Alito, debunked the notion the Constitution guarantees a “right” to abortion (even left-leaning legal scholars admit Roe was an egregious misreading of the Constitution), handing the matter back to the states for voters and legislators to decide.
It’s a perfectly reasonable and sound opinion, legally speaking.
Politically speaking, however, Dobbs is not the outcome liberals wanted. So, like with everything else that doesn’t go their way, they’re trying to undermine the legitimacy of a conservative victory by undermining the authority of the institution from which it came.
Earlier this month, Kagan said in a rather unsubtle dig at the court’s recent decisions that “judges create legitimacy problems for themselves, undermine their legitimacy, when they don’t act so much like courts and when they don’t do things that are recognizably law.”
And at an appearance in Montana, she said, “If, over time, the court loses all connection with the public and with public sentiment, that is a dangerous thing for democracy.”
What childish nonsense.
How long have Justices Clarence Thomas and Samuel Alito served on the court, watching year after year as its liberal bloc handed down poorly reasoned and unconstitutional decisions? How many times did they respond by disparaging the legitimacy of the institution? How many years have they sat in polite silence, working diligently to fight for good law and give voice to constitutional order without once encouraging the public to question the authority and intentions of the court? The thought likely never even crossed their minds — because they’re not spoiled children. They’re professionals.
In a statement of his own, Alito responded this month to Kagan’s broadsides against her own place of work, rebuffing his colleague for questioning the court because she disagrees with its recent rulings.
“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.”
Alito sounds somewhat surprised, shocked even, that Kagan would go so far. He shouldn’t be. Did he really expect better from an outspoken liberal? This is how they handle political defeat.
Lose a presidential election? Abolish the Electoral College or claim the election was rigged (see: Bush vs. Gore, Trump vs. Clinton, and Kemp vs. Abrams). Even election truther and former President Donald Trump, a longtime Democrat, has fallen back on this playbook. (He learned from the best!) Lose a Supreme Court seat? Expand the bench. Lose a vote in the Senate? Complain it’s not fair Wyoming, with a population of 580,000 people, has equal representation in the Senate as California, which is home to 39 million people. (Curiously, they never complain Rhode Island, population 1 million, has the same representation as Texas, population 30 million.)
A Supreme Court decision doesn’t go your way? Undermine the legitimacy of the entire institution.
In 2019, Democratic Sen. Elizabeth Warren of Massachusetts stated in no uncertain terms that questioning the legitimacy of conservative victories is a key part of the Democratic electoral strategy.
“Massive voter suppression prevented Stacey Abrams from becoming the rightful governor of Georgia,” Warren told an audience at Al Sharpton’s National Action Network Convention.
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She added, “They know that a durable majority of Americans believe in the promise of America, and they know that if all the votes are counted, we’ll win every time.”
In other words, “It’s legitimate only when we win!”
Becket Adams is the program director of the National Journalism Center.
