WASHINGTON (AP) — Supreme Court Justice Elena Kagan warned Monday that courts look political and lose legitimacy when they unnecessarily overturn precedent and decide more than necessary.
Speaking less than three months after a five-justice conservative majority struck down Roe v. Wade, Kagan said public opinion about the tribunal can be damaged, especially when changes in its composition lead to big changes in the law.
She emphasized that she wasn’t talking about any particular decision or even a series of decisions she disagreed with.
Yet her remarks were similar to points raised in dissenting opinions she has written or contributed to in recent months, including in the abortion case.
“Judges create legitimacy issues for themselves…when they instead stray into places where they appear to be an extension of the political process or when they impose their own personal preferences,” Kagan told the Temple. Emanu-El in New York. The event was broadcast live.
The 62-year-old New Yorker took a different tone from Chief Justice John Roberts, who addressed a gathering of judges and lawyers in Colorado Springs, Colorado, last week.
“The mere fact that people disagree with an opinion is no reason to question the legitimacy of the tribunal,” Roberts said.
The Chief Justice has been a consistent defender of the court’s legitimacy against complaints that the court is not much different from the political branches of government.
But Kagan said the tribunal risks damaging its own legitimacy when big changes in the law follow changes in the composition of the tribunal.
The public has a right to expect, she said, “that personnel changes won’t bring the entire legal system to the brink.” Kagan joined the tribunal in 2010, nominated by President Barack Obama.
Three of the justices who are part of the court’s conservative majority were appointed by President Donald Trump. They voted to unseat Roe and also imposed limits on the Biden administration’s efforts to fight climate change, expanded gun rights and weakened the separation between church and state.
In the term that begins next month, the court will take up a challenge to the use of race in college admissions, just six years after the court reaffirmed affirmative action in higher education.
Kagan also briefly touched on the unprecedented leak of the draft notice in the abortion case, saying it makes the judges’ job much more difficult “when you might wake up tomorrow morning and there’s a notice. on the front page of the newspapers.
She said she didn’t know if the investigation Roberts ordered in May determined the source of the leak.