Kagan warns the Supreme Court must ‘act like a court’ to keep Americans’ faith
John Fritze, USA TODAY – October 1, 2022
WASHINGTON – Associate Justice Elena Kagan isn’t waiting to get back onto the Supreme Court’s bench before posing some tough questions.
As the high court readied itself for another consequential term, Kagan used a series of public appearances to describe how she believes the court should function – and to warn that Americans will lose faith if the institution is viewed as another political branch.
It goes without saying that the former solicitor general and dean of Harvard Law School chose her words carefully, declining to cite by name the landmark decision in June to overturn Roe v. Wade, for instance, or a major ruling days later that has left many gun regulations in states across the country on shaky ground under the Second Amendment.
But one need not squint too hard to see Kagan’s meaning.
“The court shouldn’t be wandering around just inserting itself into every hot button issue in America, and it especially, you know, shouldn’t be doing that in a way that reflects one ideology or one…set of political views over another,” she said Sept. 19 during a question-and-answer session at Salve Regina University in Rhode Island.
“A court does best when it keeps to the legal issues, when it doesn’t allow personal political views, personal policy views to an affect or infect, its judging,” said Kagan, who was nominated by President Barack Obama in 2010. “And the worst moments for the court have been times when judges have allowed that to happen.”
Her remarks come after a term in which the court’s 6-3 conservative majority consistently decided the biggest cases – on abortion, guns and religion – in ways that aligned closely to conservative political ideology. The rulings caused outrage on the left, led to protests outside some of the justices’ homes and sent the court’s approval rating into a tailspin.
The high court begins hearing cases during its new term on Oct. 3. On the docket so far: whether universities may consider race in admissions, whether certain matrimonial businesses may turn away customers seeking services for their same-sex weddings, and how much oversight state legislatures will have in setting the rules for federal elections.
Only 28% of Americans have a “great deal” or “quite a lot” of confidence in the Supreme Court, down from 39% two years ago, according to a Marquette Law School poll in July. That poll found that approval of the court had fallen to 38% compared with 66% in 2020.
Chief Justice John Roberts defended the court’s work last month, arguing that while its opinions are open to criticism from the public, the institution’s legitimacy shouldn’t be called into question “simply because people disagree with an opinion.”
In the abortion case, Roberts voted to uphold a Mississippi law that banned most abortions after 15 weeks of pregnancy, but he – unlike the five other conservative justices – did not see the need to overturn Roe. The chief justice joined his conservative colleagues in the Second Amendment case.
“Lately, the criticism is phrased in terms of, you know, because of these opinions, it calls into question the legitimacy of the court,” Roberts said at a judicial conference in Colorado. “If they want to say that its legitimacy is in question, they’re free to do so. But I don’t understand the connection between opinions that people disagree with and the legitimacy of the court.”
That view has drawn pushback from critics who say it’s only partly about the outcome of individual cases. It’s also the case, they say, that the high court repeatedly upheld its 1973 Roe v. Wade decision until former President Donald Trump nominated and won confirmation for three justices, giving conservatives a super majority. Trump repeatedly promised to nominate judges who would overturn Roe v. Wade.
Without mentioning Roberts, Kagan indicated her point was broader: That Americans need to have confidence the Supreme Court’s decisions are based on judicial philosophies and doctrines that are applied evenly – regardless of whether the outcome matches the party platform of the president who nominated the justices in the majority.
“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,” she said.
“I’m not talking about the popularity of particular Supreme Court decisions,” Kagan said at the Northwestern event last week. “What I am talking about is what gives the people in our country a sort of underlying sense that the court is doing its job.”