Kavanaugh says 'unpopular' decisions can sometimes become accepted as part of the 'fabric of American constitutional law'

 May 14, 2024

The role of the Supreme Court and its nine justices is to make decisions on individual cases based solely upon relevant laws and precedents but without any thought toward partisanship or popularity.

That is because unpopular decisions from the high court can sometimes eventually become widely accepted as part of the "fabric of American constitutional law," according to Justice Brett Kavanaugh, the Associated Press reported.

Kavanaugh's claim came during an appearance last week at a judicial conference for the conservative-leaning 5th Circuit Court of Appeals, which covers Texas, Mississippi, and Louisiana.

"Individual decisions don’t have to be popular"

The Washington Post reported that Justice Kavanaugh spoke with 5th Circuit Chief Judge Priscilla Richman at the judicial conference in Austin, Texas, and acknowledged the partisan "polarization" of the country while discussing ways that courts and judges could act to help improve public trust in their decisions.

"Individual decisions don’t have to be popular. … The losing party has to respect the decision," Kavanaugh said at one point, and noted that, "Consistency builds respect."

"It’s showing up every day in the courtroom and trying to be respectful to the parties, to write your opinion in a way that’s clear and understandable, to get out when you’re speaking and try to explain, to the bar, the judicial process, to try to be transparent and to be impartial as a judge," he continued.

Kavanaugh also took note of the real world impact of the court's decisions, and said, "Real lives are being affected. Real people are being hurt or helped. You can’t lose sight of that," and added, "It’s polarized. I get it. I’m part of the system. I understand. I see it."

Unpopular decisions can later become part of the "fabric of American constitutional law"

On the theme of unpopular decisions from the Supreme Court, per the AP, Justice Kavanaugh pointed out that several decisions from the 1950s and 60s, particularly dealing with civil rights, were not particularly popular with many Americans at the time they were decided but have since become widely accepted as the law of the land.

"The Warren court was no picnic for the justices," Kavanaugh said of the high court at that time. "They were unpopular basically from start to finish from ’53 to ’69."

"What the court kept doing is playing itself, sticking to its principles," he added. "And you know, look, a lot of those decisions [were] unpopular, and a lot of them are landmarks now that we accept as parts of the fabric of America and the fabric of American constitutional law."

Kavanaugh also advised federal judges to "stay as far away from politics as possible," and explained, "It’s an everyday thing. I don’t think it’s a 'flip the switch,'" but rather being consistent and respectful and transparent with all involved parties and the general public.

Public approval of Supreme Court currently low

The Supreme Court certainly is at a low ebb in its popularity right now, in part because of significantly consequential rulings -- chief among them overturning Roe v. Wade in 2022 and returning the right to regulate abortion from the federal level to the individual states -- but also because of the biased media's advocacy against the court and obsession with attempting to scandalize and smear the conservative-leaning jurists.

Gallup found in September 2023 that Supreme Court approval had dipped to 41%, down from a recent peak of 58% in July 2020, while disapproval had soared to 58%, up from the July 2020 low of 38%.

More recently, in February, a Marquette Law School poll revealed that Supreme Court approval and disapproval stood at 40% and 60%, respectively, just one point worse in both respects from November 2023, but markedly different from March 2022 -- just a couple of months before Roe was overturned -- when the court's approval was 54% and disapproval was 45%.

" A free people [claim] their rights, as derived from the laws of nature."
Thomas Jefferson
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