Justice Kagan Confesses

 

Justice Kagan Confesses:

On Thursday, July 21, 2022, at a judicial conference in Big Sky, Montana, Associate Justice of the Supreme Court of the United States Elena Kagan hypocritically fessed up to being a card-carrying “living constitutionalist.”

According to Reuters’ reporting, the Obama appointee made the following statements, among others:

1.             “It would be a ‘dangerous thing for a democracy [presumably the United States] if the conservative-majority U.S. Supreme Court [Associate Justices Thomas, Alito, Gorsuch, Kavanaugh, Barrett and fair-weather Chief Justice Roberts] loses the confidence of the American public.” (Kagan.)

 

2.             “Kagan stressed the importance of the justices staying in their proper roles as judges and not dictating public policy.” (Reuters.)

 

3.             “I’m not talking about any particular decision or any particular series of decisions, but if over time the court loses all connection with the public and public sentiment, that is a dangerous thing for a democracy.” (Kagan.)

 

4.             “Overall, the way the court retains its legitimacy and fosters public confidence is by acting like a court, is by doing the kinds of things that do not seem to people political or partisan.” (Kagan.)

 

5.             The court “earns its legitimacy by what it does, by the way it behaves.” (Kagan.)

 

6.             “She said there have been times in history when the court has been ‘unconstrained and undisciplined’ when justices ‘really just attempted to basically enact their own policy or political or social preferences’ and said the current justices should guard against that.” (Reuters, Kagan.)

 

7.             “Kagan also said justices have to be consistent when implementing their judicial philosophies and cannot abandon that approach when it will not result in their preferred outcome.” (Reuters.)

 

“Hypocrisy” is defined a “the practice of claiming to have moral [or legal, political, or other] standards or beliefs to which one’s own behavior does not conform; pretense.”

Against that definition, let’s examine what Kagan said at the Montana judicial conference, and what Reuters attributed to her.

1.             The primary way conservatives could (and should) lose “the confidence of the American public,” is by deciding cases not by principles of originalism and textualism, but instead by the Kagan and other altruists-collectivist-statist’s furtherance of Living Constitutionalism.

 

Note Chief Justice Roberts having led a Court majority in holding that Obamacare was a legitimate “tax.” That’s the way not only to endanger democracy, but eventually to kill it.

 

Also note Kagan’s recent dissents in the abortion and gun cases. They were not

judicial opinions, but instead hard-core liberal/progressive policy essays.

 

2.             This is hypocrisy-squared. Kagan has the temerity to suggest to conservative justices that they act as judges not policy makers when virtually every constitutional law opinion she has written in ten years has been policy, not law.

 

3.             Kagan has the wrong branch of government. It is not her or her colleague’s job to have a connection “with the public and with public sentiment,” nor with the former with the latter.

 

If Justice Kagan want to connect over policy issues, she and others similarly motivated should go down the street to where the House and Senate sit.

 

4.             That Kagan can admonish conservative justices to “act like a court” when in her decade on SCOTUS most of her constitutional opinions read like they were written by a lobbyist for socialism, is hypocrisy-times-three. They, and she, have no legitimacy.  

 

That’s why they and she have no legitimacy. Overall, the way the court retains its legitimacy and fosters public confidence is by acting like a court, is by doing the kinds of things that do not seem to people political or partisan.” (Kagan.)

 

5.             Indeed! To paraphrase a medical saying, “Justice Kagan, heal thy self.”

 

6.             Hypocrisy- tripled. And denial. She should read the abortion and gun cases’ dissents.

 

7.             That is exactly what liberal/progressive SCOTUS justices have been doing for over a century.

 

(See, my The Supreme Court Opinions of Clarence Thomas, The American Constitution and Ayn Rand’s “Inner Contradiction,” and The “Living Constitution” and the Right to Die.)