The Washington PostDemocracy Dies in Darkness

Kagan says questions of legitimacy risky for Supreme Court

Supreme Court Justices Elena Kagan and Samuel A. Alito Jr. testify before a House Appropriations subcommittee in 2019. (Ricky Carioti/The Washington Post)
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BIG SKY, Mont. — Liberal Supreme Court Justice Elena Kagan said Thursday that it would be a “dangerous thing” for the court and for democracy if the justices stray too far from public sentiment and lose the confidence of Americans.

Kagan, who dissented when the court last month overturned Roe v. Wade’s guarantee of a constitutional right to abortion, said the court’s legitimacy is threatened when long-standing precedent is discarded and the court’s actions are seen as motivated by personnel changes among the justices.

Speaking before a conference of about 500 mostly judges and lawyers, Kagan emphasized several times that she was not singling out the just completed term. She was on the losing side as the court’s conservative majority threw out Roe, greatly transformed the court’s jurisprudence on the role of religion in public life, expanded gun rights and narrowed the powers of the Environmental Protection Agency to combat climate change.

“I’m not talking about any particular decision or any particular series of decisions. But if, over time, the court loses all connection with the public and the public sentiment, that’s a dangerous thing for democracy,” Kagan said. “We have a court that does important things, and if that connection is lost, that’s a dangerous thing for the democratic system as a whole.”

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The public generally approves when the Supreme Court delivers a mixed bag of opinions, some favoring conservatives and others with liberal outcomes. But the addition of three justices nominated by President Donald Trump has installed a six-to-three conservative supermajority, and the court’s jurisprudence has moved steadily to the right.

A Gallup poll showed that the court’s approval ranking is sinking to its lowest level in modern times. Similarly, polling by the Marquette University law school shows a dramatic change: 66 percent of the public approved of the Supreme Court’s work in September 2020, but a poll taken this month showed that that had dropped to 38 percent.

That’s not necessarily the way to judge the court’s work, Kagan said. “By design, the court does things sometimes that the majority of the country doesn’t like,” she said.

But for the public to respect and follow unpopular decisions, she said, the court must earn its legitimacy and the public’s confidence.

“Overall, the way the court retains its legitimacy and fosters public confidence is by acting like a court, is by doing the kind of things that do not seem to people political or partisan, by not behaving as though we are just people with individual political or policy or social preferences,” she said.

Conservatives often charge that liberals’ warnings about the Supreme Court losing its legitimacy are simply a way to preserve liberal precedents of the court.

Kagan, nominated to the court in 2010 by President Barack Obama, acknowledged that “if you look over history, there have been times where judges have been unconstrained and undisciplined, and attempted to basically enact their own policy or political or social preferences. It’s happened on both sides.”

In her view, she said, the court could protect its legitimacy with the public by overturning precedent only in extraordinary circumstances, narrowing decisions to decide only what is necessary in a case and consistently applying methods of deciding cases that “discipline and constrain you.”

Graphic: How the Supreme Court ruled in the major decisions of 2022

While she took pains not to refer to cases of the last term, some of her remarks sounded a bit like the dissents she wrote or joined.

For instance, the court’s conservative supermajority was cemented when Justice Brett M. Kavanaugh took the place of the more moderate retiring Justice Anthony M. Kennedy and when the liberal Justice Ruth Bader Ginsburg was replaced by Justice Amy Coney Barrett.

“People are rightly suspicious if one justice leaves the court or dies and another justice takes his or her place and all of sudden the law changes on you,” she said Thursday.

In their dissent in Dobbs v. Jackson Women’s Health Organization that overturned Roe and Planned Parenthood v. Casey, Kagan and Justices Stephen G. Breyer and Sonia Sotomayor sounded a similar note.

“The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them,” they wrote. “The majority thereby substitutes a rule by judges for the rule of law.”

Kagan was questioned by two judges and lawyer, and she was not asked about the court’s specific decisions nor her new colleague, Justice Ketanji Brown Jackson. Jackson replaced Breyer, who retired, and joins Kagan and Sotomayor on the court’s left.

The court has been closed to the public since March 2020 because of the coronavirus pandemic (and now is surrounded by a black security fence because of protests over the abortion ruling). Last term, the court held oral arguments in a courtroom open only to credentialed press and court personnel. The proceedings were live-streamed.

Kagan said the nine justices have not yet discussed whether the live audio will continue when the public is allowed back into the building. She said she hopes that it will and that it has been beneficial.

“But I only get one vote,” she said.

Barnes reported from Washington.