Justice Alito: Questioning Legitimacy of SCOTUS ‘Crosses an Important Line’

Supreme Court Associate Justice Samuel Alito on Capitol Hill in Washington on March 7, 2019. (Chip Somodevilla/Getty Images)

U.S. Supreme Court Justice Samuel Alito has weighed in to defend the recent rulings from the conservative majority, saying that those questioning the high court’s legitimacy have “crossed an important line.”

Alito, who penned the majority opinion that essentially sent the question of abortion access back to individual states, was asked by the Wall Street Journal whether overturning precedent threatens the Supreme Court’s legitimacy.

“It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit,” Alito told the Journal on Sept. 27. “But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.”

Alito’s comment comes as Justice Elena Kagan and Chief Justice John Roberts appeared to engage in a debate without mentioning each other’s names. Speaking at a Northwestern University School of Law forum, Kagan implied that the conservative majority on the nation’s highest court was acting for the political benefit of Republicans and, as a result, damaging the Court’s legitimacy in the eyes of the public.

“When courts become extensions of the political process, when people see them as extensions of the political process, when people see them as trying just to impose personal preferences on a society irrespective of the law, that’s when there’s a problem,” Kagan said at the Sept. 14 event.

Kagan reiterated the claims during her visit last week to Salve Regina University in Rhode Island, implying that the conservative justices have trouble putting partisan politics aside.

“The very worst moments have been times when judges have even essentially reflected one party’s or one ideology’s set of views in their legal decisions,” said Kagan, an Obama appointee and former Harvard Law School dean. “The thing that builds up reservoirs of public confidence is the court acting like a court and not acting like an extension of the political process.”

While there was no mention of the overturning of Roe v. Wade, Kagan said justices should use more effort to refrain from inserting their own political views when they exercise the power of judicial review.

“The Court should think twice and then maybe should think twice again before doing so,” Kagan told the audience. “The Court shouldn’t be wandering around just asserting itself into every hot-button issue in America. And it especially shouldn’t be doing that in a way that reflects one ideology or one set of political views over another.”

At an earlier event, Roberts, who sometimes sides with the Court’s liberal wing, disagreed with the idea that the Court is damaging its own legitimacy. During a judicial conference in Colorado, he insisted that the court’s lawful responsibility stands unquestioned, regardless of whether its decisions fuel public dissatisfaction.

“I don’t understand the connection between opinions people disagree with and the legitimacy of the court,” Roberts said at the Sept. 9 event. “If the court doesn’t retain its legitimate function, I’m not sure who would take up that mantle. You don’t want the political branches telling you what the law is, and you don’t want public opinion to be the guide of what the appropriate decision is.”

“Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court,” he added.

The comments also come after a series of Supreme Court rulings that are considered major conservative victories. Those decisions include Carson v. Makin, which found it unconstitutional for a state to help fund private schools but exclude religious ones; and New York State Rifle & Pistol Association v. Bruen, which invalidated a 100-year-old rule demanding those interested in obtaining a concealed carry permit to prove they have a “good cause.”