- Friday, July 29, 2022

Justice Elena Kagan of the Supreme Court’s doctrinaire-left faction gave a speech last week where she warned about the court losing its legitimacy by becoming too far removed from public opinion.

While she claimed she didn’t have a specific decision in mind, you just knew she was talking about such clear and present dangers to judicial activism as the court’s reversal of Roe v. Wade.

Now that the majority believes it should be bound by the intent of the founders, the left is frantic. Forget Jan. 6; now it’s the Supreme Court that’s seeking to overthrow democracy, it warns.

Radicals long for the days when a Stalinist judiciary reordered society to fit their ideology. This they call democracy.

In reality, the Constitution’s drafters intended for the courts to be the branch of government furthest removed from public opinion, to safeguard liberties from fickle majorities. That’s why justices are appointed, not elected, and have lifetime tenure.

Remember when the left said a Supreme Court opinion was the voice of God? No matter how absurd a decision was, if a majority of justices said something was in the Constitution, then it was there, damn it! Ah, but that’s when it had a majority. Now the conservative court is reviled as an evil cabal intent on abolishing rights.

At a judicial conference last week, Justice Kagan declared, “If over time the court loses all connection with the public and with public sentiment, that’s a dangerous thing for democracy.”

The court’s activist wing didn’t give a damn about public opinion when it was in control.

When Roe v. Wade was handed down in 1973, only four states had abortion on demand before viability. Instead of allowing voters of the various states to chart their own course, the Roe court mandated abortion for the nation, regardless of popular opinion. Now, Dobbs has given power back to the people.

Similarly, in 2015 with Obergefell v. Hodges, an activist court wiped out 50 state marriage laws and an act of Congress passed overwhelmingly under a Democratic president. 

In 2015, 31 states had constitutional amendments banning legal recognition of same-sex marriage, many enacted by referendum. 

In 2008, California voters, possibly the most liberal in the nation, approved Proposition 8, banning gay marriage. With over 13 million votes cast — and the media and political establishment lined up against it — Proposition 8 passed by a margin of 52% to 48%.

In 1996, the Defense of Marriage Act, defining marriage for purposes of federal law as the union of a man and a woman, passed Congress by 342 to 66 in the House and 84 to 16 in the Senate. President Bill Clinton signed it into law.

All of those exercises in representative government were nullified by a 5-to-4 ruling of the Supreme Court. Where then were the cries of the court losing “all connection with the public and with public sentiment” and the danger it posed for representative government?

For decades, the left used the Supreme Court to negate popular sovereignty. The Constitution became a political pinata the majority whacked to produce the desired result — abortion on demand and same-sex marriage among the more radical moves.

The Due Process and Equal Protection Clauses of the 14th Amendment — ratified after the Civil War to prevent states of the old Confederacy from abridging the liberties of former slaves — were twisted out of shape to create rights to which they were never intended to apply.

That’s why the Democrats have fought so hard to keep constitutionalists off the Supreme Court, even using fake allegations of sexual harassment or assault to smear conservative nominees.

And the left’s domination of the federal judiciary was never supposed to end. 

The Supreme Court was forever to be its judicial House of Lords, giving it what it could never get from voters or their elected representatives. Nothing was to stand in the way of the advance of Cultural Marxism — a totalitarian creed imposed from above.

When conservatives began to make an issue of judicial tyranny (starting with President Ronald Reagan and continuing through President Donald Trump) that started to change. Now a majority of the high court is faithful to the founders’ intent, rather than using the Constitution as a launching pad for flights of judicial fancy.

It’s time for the left, including Justice Kagan, to come clean. It’s not about democracy or popular sovereignty but using the judiciary to force us into line.

• Don Feder is a former Boston Herald writer and syndicated columnist.

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