I get a sense of the threat we may face, from a Supreme Court influenced by Elena Kagan, in her vow to defer to the political branches of government when interpreting the Constitution. This is a stance now being trumpeted by, e.g., environmental(ist) trade press outlets like E&E News. E&E runs a headline right now: “Kagan stresses deference to Congress, agencies” (subscription required).

That curious turn of phrase is Kagan’s own. It is not one nuanced with, say, a concern for divining legislative intent, but instead is a broad expression of deference to bureaucrats and politicians. Not to the Constitution. This is illuminating.
Taken in context, it is chilling. As Yahoo News writes:
“In her opening statement to the Senate Judiciary Committee, Elena Kagan vowed to show restraint and deference to Congress and the will of the people if ultimately confirmed to the Supreme Court, emphasizing the court “must recognize limits on itself and respect the choices made by the American people.”
“The Supreme Court is a wondrous institution,” Kagan said. “But the time I spent in other branches of the government reminds me that it must always be a modest one — properly deferential to the decisions of the American people and their elected representatives.”
The reporter first conveys the by now de rigueur implication of the attitude of restraint. But presumably in seeking to preempt claims that as someone with an extensive political history she would be an activist justice, Kagan manages to nonetheless betray the feared disregard for the Constitution.
The Supreme Court’s role is to apply the Constitution to laws enacted by the legislature, and to how those laws are being executed (or otherwise as the political branches choose to interpret or assert authority). It is the Constitution to which our non-political branch of government the courts, and certainly Supreme Court Justices, must defer.
Not the political branches. Political branches give us, say, Power Grabs. Courts are a check, to apply the Constitution to rein politicians and bureaucrats in.
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