Speaking out in public before the Supreme Court opens its new session Oct. 3, 62-year-old Supreme Court Associate Justice Elena Kagan spoke out about polls that show the public with on 28% high confidence in the High Court. Kagan warned that the Supreme Court lost public confidence, down from 39%, largely because the June 21 conservative [6-3] ruling ending 1973 Roe v. Wade, a longstanding court precedent confirmed by all new conservative justices as “settled law” at confirmation hearings. When the Supreme Court overturned Roe v. Wade, the public groaned, knowing that the states would muck up a women’s right to choose abortion. “The court shouldn’t be wandering around just inserting itself into every hot button issue in America, and it especially, you know, shouldn’t be doing that in a way that reflects one ideology or one . . . set of political views over another,” Kagan said Sept. 19.
Kagan’s point could not be taken more seriously, when the vast majority of American women disagreed with the June 21 conservative ruling that tossed the responsibility for abortion back to states. When the High Court ruled on Dobbs v. Jackson June 21, it said the Constitution did not guarantee abortion as Roe v. Wade. But Roe v. Wade only guaranteed a woman’s right, with her doctor, to chose any medical procedure, not specially abortion. Only conservative, primarily evangelical pro-life groups have been battling Roe v. Wade for the last 73 years, largely because of their religious beliefs that life begins at conception, also something not guaranteed in the Constitution. As a matter of fact, the Constitution only applies it protections after birth. Conservatives on the High Court, led by Associate Justice Amy Coney Barrett, got the ruling wrong.
Going public with her thoughts, Kagan hopes to prevent another major blunder by the Supreme Court, especially as the court open Oct. 3 debating whether universities can used race in admission decisions, businesses can discriminate against LGBQT consumers or oversight in state election laws. None of the decisions rise to the level of Roe v. Wade but Kagan wants the court to focus on legal issues, not personal opinions. “Lately, the criticism is phrased in terms of, you know, because of these opinions, It calls into questions the legitimacy of the court,” said Chief Justice John Roberts. “If they want to say that its legitimacy is in question, they’re freed to do so. But I don’t understand the connection between opinions that people disagree with and the legitimacy of the court,” Roberts said. Roberts can’t see that strongly help opinions on abortion—or anything else—have no place on the High Court.
Roberts makes the perfect argument why Associate Justices Neil Gorsuch, Brett Kavanaugh and Coney Barrett have such strong opinions on abortion. Ruling on Dobbs v. Jackson was a red herring to rule that the Constitution has no protection for abortion. Roe v. Wade, as the justices know, including Roberts, and Justices Samuel Alito and Clarance Thomas, was over 50 years established precedent, settled law, about a woman’s right to chose. Strong religious beliefs or opinions have no place on the High Court, only ruling about Constitutional law. “The thing that builds up reservoirs of public confidence is . . . the court acting like a court and not acting like and extension of the political process,” Kagan said, responding to Roberts questions about the court’s opinions on certain matters important to U.S. citizens. Every justice knew that a strong majority thought Roe v. Wade was settled law.
Kagan raises important questions for how the High Court does its business. Roberts can’t possibly be confused about how personal religious views or opinions should not infiltrate the Justices’ rulings. When it came to Dobbs v. Jackson, it in no way invalidate Roe v. Wade, because the original Constitution has nothing to do with abortion. Freedom of choice was always debated in the original Constitution, not the right to abortion. “I’m not talking about the popularity of particular Supreme Court decisions,” Kagan told an audience at Northwestern Univ. “What I am talking about is what gives the people in our country a sort of underlying sense that the court is doing its job,” Kagan said. Kagan raised real concerns that personal religious views and opinions now dominate the Constitutional law reasoning, requiring careful analysis of judicial precedents before overturning established law.
Whatever the strong feelings circulating in political or religious circles about abortion, there’s no place on the High Court for personal religious views or opinions. Dobbs v. Jackson was exploited by the court’s conservative majority to smash a square peg into around hole. There’s nothing logical about Dobbs v. Jackson overturning over 50-year-legal precedent that gave women at the federal right to choose a medical procedure, whether abortion or not. All of former President Donald Trump’s nominees to the Supreme Court agreed in Senate confirmation hearings that Roe v. Wade was established precedent, settled law. Yet once given the opportunity to overturn Roe, they jumped at the opportunity but not on sound Constitutional logic but on personal religious preferences and opinions. Kagan wants to save the court from another opinion-based legal ruling.
About the Author
John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He’s editor of OnlineColumnsit.com and author of Dodging The Bullet and Operation Charisma.
