The Left certainly has their boogeyman when it comes to attacking the legitimacy of the U.S. Supreme Court. After someone leaked the draft opinion of Dobbs v. Jackson, which was released on May 3 but wasn't officially handed down until June 24, pro-abortion activists illegally protested outside the homes of conservative justices, including Justice Samuel Alito, who authored the opinion.
With a new term about to start, at which point we still don't know who leaked the draft, "Alito" and "#SupremeCourt" are now trending on Twitter over one paragraph's worth of remarks made to the Wall Street Journal when it comes to defending the legitimacy of the Court.
There's the usual suspects, including Slate's Mark Joseph Stern and Vox's Ian Millhiser. It's worth reminding that Millhiser tweeted a pre-written obituary of Alito earlier last month, though he ultimately deleted it, as he's done with other tweets criticizing the Court.
In a statement to @JessBravin, Alito suggests that Kagan “cross[ed] an important line” when she warned that the Supreme Court is losing its legitimacy. (He doesn’t identify her by name, but it’s pretty clear he’s alluding to her recent comments.) https://t.co/bLZaKQ9YC8 pic.twitter.com/Knjd2Lt7LC— Mark Joseph Stern (@mjs_DC) September 28, 2022
This quote is funny because Alito and five of his colleagues joined a majority opinion last June which just straight up lied about the facts of the case, and then stuck to the lie when they were confronted with photographic evidence they were lying.https://t.co/GTVNE6NDjC pic.twitter.com/5zX5thsDad— Ian Millhiser (@imillhiser) September 28, 2022
Millhiser later tweeted out particular delight over supposed in-fighting between the justices.
I am SO FUCKING EXCITED if Supreme Court justices are going to just snipe at each other in the press now. This development serves so many of my goals, and none of the Supreme Court's institutional interests.— Ian Millhiser (@imillhiser) September 29, 2022
Others chimed in, including Steve Benen, who serves as a producer of MSNBC's "The Rachel Maddow Show" and editor of the MaddowBlog.
Samuel Alito suggested that critics of the Supreme Court's conservative majority have crossed an important line by questioning the institution's legitimacy.— Steve Benen (@stevebenen) September 29, 2022
But if anyone's gone too far in an irresponsible direction, it's Alito. https://t.co/FQ74Mr6Tq8
Sitting Sen. Sheldon Whitehouse (D-RI) went after the justice over Twitter, and from his official account.
Yes, an important line that the special interests who captured the Court are desperate to defend, lest their $580+ million investment in the capture be wasted.— Sheldon Whitehouse (@SenWhitehouse) September 29, 2022
Curt Levey, a constitutional law attorney and president of the Committee for Justice, told Townhall in a statement that such criticism was mostly business as usual. "With the exception of Sen. Whitehouse’s unhealthy obsession with an imaginary right-wing conspiracy to pack the Court, the criticism we hear from Justice Kagan and other progressives is understandable in that it reflects their disappointment that, for the first time in living memory, the Court can no longer be counted on to enact progressives' agenda," he said.
The article in question, from Jess Bravin, was last updated on Wednesday night, "Kagan v. Roberts: Justices Spar Over Supreme Court’s Legitimacy."
As the excerpt in question reads:
In a comment Tuesday to The Wall Street Journal, Justice Alito said: “It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit. But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.”
The chief justice and Justice Kagan declined to comment.
Beyond the handful of times in which he's mentioned alongside fellow conservative justices, this is the only time Alito is mentioned. Criticizing Justice Alito, then, certainly highlights how narrow-minded the Left is in hating the justice.
There's much larger context presented in Bravin's article than what Alito's critics are using to cause him to trend. For instance, what Justice Elena Kagan actually said, and how Chief Justice John Roberts took issue with her comments, as the headline suggests:
In July, the Barack Obama appointee, part of the court’s three-member liberal minority alongside Justices Sonia Sotomayor and Ketanji Brown Jackson, told a judicial conference in Big Sky, Mont.: “If, over time, the court loses all connection with the public and with public sentiment, that is a dangerous thing for democracy.”
Chief Justice Roberts earlier this month took issue with Justice Kagan’s critique.
“Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court,” he told a judicial conference in Colorado Springs, Colo. The high court’s role, grounded in the Constitution, ”doesn’t change simply because people disagree with this opinion or that opinion or disagree with the particular mode of jurisprudence,” he said.
Days after Chief Justice Roberts’s remarks in Colorado Springs, Justice Kagan suggested that the majority sought those results over consistent application of legal methods conservatives often say they follow. A justice shouldn’t be a “textualist just when it leads to the outcomes that you personally happen to favor,” she said at Northwestern University.
She also said her focus wasn’t on the popularity of particular decisions but rather on how the court could retain public confidence even when it makes unpopular rulings.
Court precedents, she said, should be respected except in the most extraordinary circumstances. “It just doesn’t look like law when some new judges appointed by a new president come in and just start tossing out the old stuff,” she said, in an apparent reference to the positions of Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, who were all confirmed during President Donald Trump’s single term in office.
Justice Kagan added that courts should act incrementally rather than issuing sweeping pronouncements that disrupt the legal order, a point often made by Chief Justice Roberts, including in his explanation for not joining Justices Alito, Clarence Thomas, Gorsuch, Kavanaugh and Barrett in reversing Roe v. Wade’s half-century precedent.
Levey also addressed Kagan's claims in his statement. "Justice Kagan’s complaint that the Court’s recent decisions reflect Republican policy preferences conveniently omits the cases that went in the opposite direction. On the final day of its 2021-22 term alone, the Court upheld the Biden administration’s repeal of President Trump’s 'Remain in Mexico' policy and let stand New York state’s vaccine mandate for health-care workers, which lacks a religious exemption. The Court’s 8-1 denial of Trump’s request to block the January 6 panel’s subpoena of his White House records is yet another glaring counterexample," he added.
It wasn't merely the Dobbs case that Justice Kagan has to be bitter about. "Justice Kagan was on the losing side in nearly every major case last term: not only the landmark opinion overruling Roe v. Wade but also decisions that expanded access to concealed weapons; limited the Environmental Protection Agency’s power to fight climate change; and increased religion’s presence in the public education system," Bravin wrote.
In tying the reaction and Kagan's points together, Levey also pointed out that "Even if Kagan were counterfactually correct that the Court’s decisions reflect partisan priorities, it’s rich that progressives are finally complaining about this now, following nearly a century of the Court largely reflecting progressives’ agenda – from eviscerating limits on federal power during the New Deal to discovering a constitutional right to same-sex marriage." On that issue, he suggested "Someone should ask Justice Kagan if the Court’s invention of a right to gay marriage, at a time when most states, including California, had voted against it, diminished the Court’s credibility."
As Bravin's piece acknowledged, approval ratings for the Supreme Court have gone sharply down, and it looks like polls continue to do so, given that Bravin previewed a Gallup poll which he says indicates "Americans’ opinions of the Supreme Court are the worst they have been in 50 years of polling." As Bravin also acknowledges, the plummeting approval rating is due mostly to Democrats' views.
Fortunately, the Court does not operate based on what's popularity, but based on how the justices interpret the Constitution. About such polls, Levey, who had also commented on polls from late June, soon after the Dobbs decision was released, said "recent polls showing a decrease in public respect for the Court reflect a sharp drop among Democrats born of bitterness that the Court will no longer do their bidding. Had Republicans been such sore losers, the Court would have had similarly low numbers during the many decades of liberal judicial activism."