Istook: If you look at one of the few things that Ms. Kagan has written, she said that the role of the Supreme Court is to benefit the despised and the disadvantaged. Actually, the reason the statues of justice wear the blindfold is because they‘re not supposed to take sides on whether you‘re liked, disliked, whether you‘re advantaged or disadvantaged. That‘s all supposed to be disregarded. And statements like that certainly make her appear to be in the— cast in the mold of a very activist judge.
Matthews: Yes, I—maybe I agree with you, maybe not. It seems to me one place I do—I think you want to correct yourself, Congressman. The courts—the 1st Amendment is to protect unpopular opinion, right?
Istook: It‘s to protect all opinion.
Matthews: No, unpopular. Let‘s face it. You don‘t need...
Istook: Unpopular included.
Matthews: ... to protect popular. You don‘t need to say, I love apple pie—you don‘t need to protect it, or, I love the flag. You have to protect people who may burn the flag and do things you really, really hate seeing them do, right? Isn‘t that what the 1st Amendment‘s about?
Matthews: You‘re denying—let me ask you this. You don‘t think it‘s the job of the Supreme Court to protect the rights of minorities?
Istook: I think it‘s the right to protect—I think their job it to protect the rights of minorities, but that is not their sole job. The job is also to protect the rights of everyone.
I’m not sure I agree with Istook that she is “cast in the mold of a very activist judge,” but I very much agree with his concept of blind justice. Matthews keeps harping on the idea that the rights of majorities and popular causes do not need defending, and I think he has it all wrong. I believe that all rights and all causes need defending, whether they are popular, unpopular, minority or majority. I would argue that the Supreme Court should protect the rights of all people, equally, including minorities.
Kagan’s statement could actually be taken in a completely non-activist sense, in that a Supreme Court that treated all persons equally, one which truly leveled the playing field, would have the ultimate effect of “benefit [to] the despised and the disadvantaged” without any activism at all. Is that the way she meant it?