Justice Kagan: ‘Dangerous’ If Supreme Court Loses Public Confidence

U.S. Supreme Court Justice Elena Kagan sits onstage at a judicial conference in Big Sky, Montana, on July 21, 2022. (Dan Levine/Reuters)

Associate Justice Elena Kagan is warning against the Supreme Court not taking heed of the public after the court struck down Roe v. Wade.

Speaking in public on July 21 for the first time since the court’s momentous ruling in June, Kagan stressed the importance of the justices staying in their proper roles as judges and not dictating public policy.

“I’m not talking about any particular decision or even any particular series of decisions, but if over time the court loses all connection with the public and with public sentiment, that’s a dangerous thing for a democracy,” Kagan said at a judicial conference in Montana.

“Overall, the way the court retains its legitimacy and fosters public confidence is by acting like a court, is by doing the kinds of things that do not seem to people political or partisan,” added Kagan, an Obama appointee who started in her position in 2010.

The nation’s top court “earns its legitimacy by what it does, by the way it behaves,” Kagan told the conference. She alleged that the court has in the past been “unconstrained and undisciplined” when justices “really just attempted to basically enact their own policy or political or social preferences” and said the current justices should guard against that.

Kagan also said justices have to be consistent when implementing their judicial philosophies and cannot abandon that approach when it will not result in their preferred outcome.

Surveys have suggested that the public is souring on the Supreme Court.

While 60 percent of respondents approved of the court in September 2021, just 38 percent expressed approval in July 2022, according to surveys conducted by the Marquette University Law School (pdf). The majority of respondents opposed the court striking down Roe.

The survey interviewed about 1,000 adults and had a margin of error of plus/minus 4 percentage points.

Only a quarter of respondents to a Gallup survey said in June they have confidence in the Supreme Court, down from 36 percent in 2021. That survey, which also had about 1,000 respondents, had a margin of error of plus/minus 4 percentage points, and was conducted before the recent decision.

A woman pushes a stroller as she walks by the U.S. Supreme Court in Washington on May 11, 2022. (Drew Angerer/Getty Images)

Dobbs

In the ruling in Dobbs v. Jackson Women’s Health Organization, a majority of justices said Roe, handed down by the same court in 1973, was erroneous in its conclusion that access to abortion is a constitutional right.

Justice Samuel Alito, a George W. Bush appointee writing for the majority, said that the court in Roe did not base its ruling on American law or common law and, as Kagan did Thursday, suggested justices were acting more like legislators when they ruled.

“After cataloging a wealth of other information having no bearing on the meaning of the Constitution, the opinion concluded with a numbered set of rules much like those that might be found in a statute enacted by a legislature,” Alito said.

Kagan co-authored a lengthy dissent with Justices Stephen Breyer, a Clinton appointee, and Sonia Sotomayor, an Obama appointee.

“Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reasonable limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected ‘[t]he ability of women to participate equally in [this Nation’s] economic and social life,’” the trio wrote. “But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare.”

They said that the right to an abortion was linked “to other settled freedoms involving bodily integrity, familial relationships, and procreation” such as the right to buy and use contraception and the right to same-sex marriage. And they decried overturning decades of legal precedent, arguing nothing had changed except for “the composition of this Court.”

“Today, the proclivities of individuals rule,” they said. “The Court departs from its obligation to faithfully and impartially apply the law.”

Reuters contributed to this report.