Justice Kagan Calls It Obamacare, but RBG Does Care About Public Opinion

September 13th, 2015

During a Q&A at Boston College, Justice Kagan referred to the ACA as “Obamacare.” I should know this for sure, but I think this is the first time a Justice actually referred to the law as Obamacare. Famously–or is it infamously–Justice Scalia referred to the law as “SCOTUScare” in King v. Burwell, but I can’t recall anyone calling it Obamacare.

Her broader remarks are of far more interest:

“We don’t stare at polls. We don’t say, ‘Do people like gay marriage or do they not like gay marriage? Do people like Obama­care or do they not like Obama­care,’ ” Kagan said yesterday during a question-and-answer at Boston College. “I think the nine of us would think that is utterly irrelevant to what we do.”

Kagan, formerly the dean of Harvard Law School, said “sometimes the majority of Americans want X, but sometimes the Constitution demands Y, and it’s too bad.”

Justice Ginsburg gives a very different impression. In an interview with Bloomberg in February–four months before the Court decided Obergefell–the Notorious RBG specifically noted that public perception on same-sex marriage has changed, and as a result, there would not be a “large adjustment” to the Court’s imminent decision.

The 81-year-old justice discussed the public’s increasing acceptance of gays against the backdrop of resistance by Alabama officials to a federal court order that took effect Monday and made it the 37th gay-marriage state. With the high court set to rule on the issue by June, she said it “would not take a large adjustment” for Americans should the justices say that gay marriage is a constitutional right.

“The change in people’s attitudes on that issue has been enormous,” Ginsburg said. “In recent years, people have said, ‘This is the way I am.’ And others looked around, and we discovered it’s our next-door neighbor — we’re very fond of them. Or it’s our child’s best friend, or even our child. I think that as more and more people came out and said that ‘this is who I am,’ the rest of us recognized that they are one of us.”


Contrast this with Ginsburg’s statements in 2013, when Hollingsworth v. Perry was before the Court, where spoke often of Roe v. Wade, which she argued moved too quickly ahead of public opinion on abortion:

“That was my concern, that the court had given opponents of access to abortion a target to aim at relentlessly,” she told a crowd of students. “… My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change.”

The parallels to the same-sex marriage debate were obvious.

I hope Kagan doesn’t look at public opinion, but RBG certainly does.