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Subtweeting John

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Elena Kagan has twice in the last week suggested that if the Court’s Republicans are concerned about the public legitimacy of the Court they need to stare into a stagnant pool more often than they already do:

Justice Elena Kagan warned again on Wednesday that unsound reasoning and politically convenient conclusions have infected the Supreme Court’s recent opinions and are doing damage to the court’s standing with the American public.

“When courts become extensions of the political process, 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 said during an event at Northwestern University School of Law.

Kagan has offered similar criticism of the high court on several occasions over the past summer, following its momentous, 5-4 decision in June overturning Roe v. Wade and wiping out a federal constitutional right to abortion that had been recognized for nearly half a century.

However, the recent criticisms from Kagan, an appointee of President Barack Obama and a former Harvard Law School dean, now seem more pointed because they come just days after Chief Justice John Roberts expressed concern publicly that the court’s reputation is being unfairly battered.

“I don’t understand the connection between opinions people disagree with and the legitimacy of the court,” Roberts said on Friday night as he addressed a judicial conference in Colorado. “If the court doesn’t retain its legitimate function, I’m not sure who would take up that mantle. You don’t want the political branches telling you what the law is, and you don’t want public opinion to be the guide of what the appropriate decision is. … Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court.”

It’s pretty rich for John Roberts to suggest that public opinion should never influence the Court. After all, not only did he suddenly discover an apparent right to first trimester abortions when he figured out that overruling Roe would undermine goals that were ore important to him personally by making the Court much less popular, but be voted to strike down a vital part of the ACA he thought was constitutional and to uphold a part he thought was unconstitutional on the well-known legal doctrine “we need to do something to Obamacare but not everything because that would look bad.”

Anyway, to make a point we have before and will have to again, Kagan is obviously right — the Court has no inherent presumption to normative legitimacy, which in a democracy is earned rather than granted like a feudal title.

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