WHAT HAPPENS WHEN SHE'S NOT PART OF THE IN CROWD?

Not too long ago, I wrote,

I know I'm repeating myself: on current trends it will be the Democrats, particularly the noisiest self-styled progressives, who will be most desirous of Constitutional protections, and that cannot come soon enough. What is now crazy, "A major transformation of the economy requires specific legislation duly enacted by Congress. Who could have though of such a crazy idea?," will be the establishment's talking point.

Not yet, though, at least if you're associate justice Elena Kagan.  "Elena Kagan Claims 'Legitimacy' of Supreme Court Is at Risk When It Strays From Public Opinion."  Yes, that's click-baitish.  Here's how Reuters reports the justice's remarks.

Liberal Justice Elena Kagan said on Thursday that it would be a "dangerous thing for a democracy" if the conservative-majority U.S. Supreme Court loses the confidence of the American public.

Speaking in public for the first time since the court's momentous ruling last month that overturned the landmark Roe v. Wade decision that legalized abortion nationwide, Kagan stressed the importance of the justices staying in their proper roles as judges and not dictating public policy.

That's interesting, since it has been the constitutional conservatives, going back at least as far as Richard Nixon and his "strict constructionists" or perhaps even earlier, to the school desegregation cases involving intact bussing, or the Miranda rulings, making numerous claims to justices and judges legislating from the bench.  Was the justice unaware that in so doing, the Court might have been out of touch with public opinion, but at the time, doing so in a way that appealed to the aesthetic sensibilities of coastal cosmopolitans?

"I'm not talking about any particular decision or even any particular series of decisions, but if over time the court loses all connection with the public and with public sentiment, that's a dangerous thing for a democracy," Kagan said at a judicial conference in Montana.

Somehow, the Republic survived the "Impeach Earl Warren" campaigns of the early 1960s. I suspect it will survive the current "Impeach Clarence Thomas" campaign, such as it is.  Perhaps it would be wise for the justice to understand that being at some remove from Popular Opinion, irrespective of what the pollsters are reporting, is part of her job description.

"Overall, the way the court retains its legitimacy and fosters public confidence is by acting like a court, is by doing the kinds of things that do not seem to people political or partisan," added Kagan, who has served on the court since 2010.

Kagan, who dissented in the abortion case along with the two other liberal justices, added that the court "earns its legitimacy by what it does, by the way it behaves."

Stacey Matthews of Legal Insurrection would like the justice to re-take middle school civics. "That she doesn’t seem to understand this integral part of her role while holding a lifetime appointment to our nation’s highest court is very scary."

Courts earn their legitimacy by enforcing legal standards in a consistent way.  Otherwise, mightn't Miranda or school bussing have gone away long ago, as neither of those polled well?