On Monday, Supreme Court Justice Elena Kagan emphasized that courts appear politicized and lose authority when they needlessly reject precedent and make more decisions than necessary.
Less than three months after a five-justice conservative majority repealed Roe v. Wade’s constitutional provision of abortion access, Kagan stated that the public’s perception of the court can be harmed, particularly when changes in its composition result in substantial changes to the law.
She emphasized that she was not referring to a specific verdict or even a series of decisions with which she disagreed.
Nonetheless, her views mirrored those expressed in opposing judgments she authored or co-authored in recent months, notably the abortion case.
Kagan stated at Temple Emanu-El in New York, “Judges create legitimacy problems for themselves when they stray into areas where they appear to be an extension of the political process or when they impose their own personal preferences.” The event was webcast live.
Last week in Colorado Springs, Colorado, Chief Justice John Roberts addressed a meeting of judges and attorneys with a different tone than the 62-year-old New Yorker.
Roberts stated, “Simply because people disagree with an opinion is no reason to challenge the legitimacy of the court.”
The chief justice has been a steadfast defender of the court’s legitimacy in the face of accusations that it is essentially identical to the political branches of government.
However, according to Kagan, the court risks undermining its own legitimacy when significant changes in the law accompany changes in its membership.
The public has a right to assume that personnel changes would not jeopardize the entire judicial system, she added. Kagan was appointed to the Supreme Court by President Obama in 2010.
President Donald Trump appointed three of the conservative majority justices on the Supreme Court. They voted to overturn Roe, as well as limit the Biden administration’s attempts to combat climate change, extend gun rights, and weaken church-state separation.
Six years after reaffirming affirmative action in higher education, the Supreme Court will hear a challenge to the use of race in college admissions at the beginning of the term that begins next month.
Kagan also briefly addressed the unanticipated leak of the draft opinion in the abortion case, stating that it makes the justices’ duties more difficult “when you may wake up tomorrow to find an opinion on the front page of the newspapers.”
She stated that she is unaware of whether the inquiry Roberts authorized in May has identified the source of the leak.