Bench Memos

False Modesty?

Solicitor General Kagan, in her opening statement to the Senate Judiciary Committee, said that the Supreme Court must be “properly deferential to the decisions of the American people and their elected representatives.” She also expressed her “admiration for the democratic process” and told the senators she had learned from her experiences in government that “the people of this country have great wisdom” and so the Court must “recognize the limits on itself and respect the choices made by the American people.”

Of course, no justice is or ever has been entirely “deferential to the decisions of the American people.” In Brown v. Board of Education, the court did not defer to state legislatures’ segregationist policies, and the court was right; in Roe v. Wade did not defer to state legislatures’ abortion regulations, and in that case the court was wrong.

It is well and good to celebrate the wisdom of the American people and to express admiration for our political process, notwithstanding its imperfections. However, senators should ask the nominee for an account of how she proposes to decide how much deference is proper and which choices the American people are allowed to make. There is, after all, nothing modest about a judicial philosophy according to which legislative acts one likes deserve deference and those one doesn’t like do not. “If I like the law, then I’ll defer to those who enacted it” is not an expression of judicial humility.

Presumably, her statements signal her inclination to uphold congressional regulations of campaign-related speech and spending, and to reject constitutional challenges to the new health-insurance regime. Will she also defer to the American people and their elected representatives when it comes to, say, school-choice programs that help low-income children escape failing public schools, or modest efforts by legislatures to limit abortion? If not, why not?


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