The Washington Post
The court and public opinion
Regarding the July 22 news article “Kagan warns of threat to democracy if Supreme Court ignores public opinion”:
Supreme Court Justice Elena Kagan said the court should not stray too far from public sentiment, referring to the overturning of Roe v. Wade. Justice Samuel A. Alito Jr., however, wrote “A right to abortion is not deeply rooted in the Nation’s history and traditions.”
Perhaps he and others ought to look more closely into Justice Kagan’s concern, and specifically “history and traditions” vis-a-vis the 18th Amendment, ratified in January 1919, that prohibited the manufacture and sale of alcoholic beverages. It was repealed with the passage of the 21st Amendment, ratified in December 1933.
These two amendments starkly reveal that the public weighs in heavily on some court decisions. Should one have the right to buy liquor and, in some cases, get stoned drunk or die of alcoholism, or should they be denied the right, even though a small minority will abuse that right? How do we legislate personal responsibility?
Justice Kagan is concerned that if the court loses all connection with the public, that would be a dangerous thing.
Sidney M. Levy, Cockeysville
Justice Elena Kagan holds that the legitimacy of the Supreme Court “is threatened when long-standing precedent is discarded and the court’s actions are seen as motivated by personnel changes among the justices.” But what about when those precedents were clearly wrong, as in Plessy v. Ferguson and Dred Scott v. Sandford, for example?
Legitimacy will be undermined when those in power and on both sides of the political divide argue that this or that ruling by the court was political. The listening public will be primed to embrace illegitimacy of the court.
From the article and quoting Justices Kagan, Stephen G. Breyer and Sonia Sotomayor: “The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them.” That statement does not hint at Justice Ruth Bader Ginsburg’s substantial unease with the foundation of Roe, an unease that, if had been cited, would have served to blunt the partisan impression of Dobbs v. Jackson Women’s Health Organization.
Who then could be contributing to the court losing legitimacy? These three dissenting justices.
Steve Brown, Springfield