However, recent criticism from Kagan, a President Barack Obama appointee and a former dean of Harvard Law School, now seems more pointed as it comes just days after Chief Justice John Roberts publicly voiced his concern that the tribunal’s reputation was being unfairly tarnished.
“I don’t understand the connection between opinions that people disagree with and the legitimacy of the court,” Roberts said Friday night as he addressed a court conference in Colorado. “If the court does not maintain its legitimate function, I do not know who would take on this role. You don’t want political branches telling you what the law is, and you don’t want public opinion to guide the proper decision. … The mere fact that people disagree with an opinion is no reason to question the legitimacy of the court.
In her Wednesday remarks, Kagan did not mention the landmark abortion decision she distanced herself from in June, but did reference other decisions where, she said, the court had colored outside the lines.
Among them was a ruling the court issued on the last day of rulings in June, reversing a key part of the Biden administration’s climate change policy on the grounds that Congress should have been more explicit if it granted the Environmental Protection Agency has authority over such a “major matter”.
“What is a major question? You know, who knows? she said to the bursts of laughter from the law students, lawyers and professors present.
Kagan also suggested that reversals of High Court precedent particularly damage public respect for the institution when they appear directly linked to changes in the composition of the Court. President Donald Trump replaced a third of the justices during his single term. President Joe Biden has just replaced retired Judge Stephen Breyer with Judge Ketanji Brown Jackson, who is due to hear his first cases as a judge next month.
“If there is a new member of a tribunal and all of a sudden everything is up for grabs, all of a sudden very fundamental principles of law are overturned, are replaced, then people have the right to say : what is going on there? It doesn’t seem very legal,” she said.
Kagan framed her call as a call for greater institutional rigor in decision-making, and she stressed that she was not saying the court should shape its decisions to ensure they have the support of a majority of Americans.
“What I absolutely don’t want to say is whether the court’s views are popular,” she said. “And sometimes the opinions of the court are not popular and sometimes … the court should not do things that are popular.
Kagan made no direct mention Wednesday of the uproar in court in recent months, following POLITICO’s release in early May of a draft majority opinion in the abortion rights case the court will rule on in June, Dobbs v. Jackson Women’s Health Organization.
Much of the opinion written by Judge Samuel Alito quashing deer was practically identical to the project. The vote tally POLITICO reported in May also proved accurate, with every Republican appointee on the court voting to overturn the federal abortion law and Roberts trying to hammer out a compromise approach.
During an appearance at the New York synagogue on Tuesday night, Kagan said she had no details on the status of an investigation Roberts had ordered into the disclosure, but she lamented it and said that she expected the Chief Justice to brief her colleagues on the investigation later this month.
” I know nothing. I suspect my colleagues know nothing, except perhaps the chief justice, about what, if anything, the investigation revealed,” Kagan said, according to CNN. Kagan, who joined the court in 2010, also called the breach of confidentiality “horrific”, “shocking” and “obvious and flagrant violation of court rules”.
Judge Neil Gorsuch told a court conference last week that it is “extremely important” that the person who leaked the draft notice be identified, The Wall Street Journal and Bloomberg News reported.
During his Wednesday remarks during a conversation with North West law dean Hari Osofsky, Kagan took a particularly hostile and forceful stance against a practice that hasn’t sparked much public debate, but which has troubled the legal community in recent years: US District Court judges blocking federal government policies nationwide.
Executive branch officials in the Biden, Trump and Obama administrations have all complained that their major policy initiatives are often crippled by a single judge.
“It has no political slant,” Kagan said, targeting not just sweeping injunctions but also transparent “forum shopping” of litigants filing cases in the courts they think are most friendly to them.
“You look at something like that and you think it can’t be true,” Kagan said. “In the Trump years, people were going to the Northern District of California, and in the Biden years, they were going to Texas. It simply can’t be fair that a district judge can stop a national policy in its tracks and let it stall for the years it takes to go through the normal process.