Kagan v. Roberts: Judges dispute the legitimacy of the Supreme Court

WASHINGTON – During the summer months when the Supreme Court was out of session, new arguments arose among the justices themselves about whether the court’s legitimacy, in the eyes of the American public, was at risk after it upended long-standing precedents in its last term.

Liberal Justice Elena Kagan, in a series of public appearances, said the court’s conservative majority had undermined the Supreme Court’s credibility with decisions that track Republican priorities. Chief Justice John Roberts, speaking at a separate event, responded that the Court’s decisions had no bearing on its legitimacy as it carried out its mandate to interpret the Constitution. At his side was fellow conservative Samuel Alito, author of the majority opinion on the historical issue of the term The heart of the Roe v. Wade caseAbolishes a woman’s constitutional right to abortion.

Throughout the court’s history, Judge Kagan said last week at Salvi Regina University in Newport, R.I., “The worst moments have been times when judges have essentially reflected a single party’s set of views or one ideology in their legal decisions.” It builds reservoirs of public confidence that the court acts like a court and does not act as an extension of the political process.”

Chief Justice John Roberts said disagreement with the opinion was “not grounds for questioning the court’s legality”.


Matt Rourke/The Associated Press

In July, the appointee of Barack Obama, who is part of the court’s three-member liberal minority along with Justices Sonia Sotomayor and Kitangi Brown-Jackson, told a judicial conference in Big Sky, Mont: “If, over time, the court loses all contact With the public and with public sentiment, this is dangerous for democracy.”

Chief Justice Roberts earlier this month took issue with Judge Kagan’s criticism.

“Simply because people disagree with an opinion is no grounds for questioning the legality of the court,” he said at a judicial conference in Colorado Springs, Colorado. The role of the Supreme Court, based on the Constitution, “does not change simply because people disagree with this or that opinion or disagree with The specific method of jurisprudence.

In a Tuesday commentary to The Wall Street Journal, Judge Alito said: “It goes without saying that everyone is free to express their disagreement with our decisions and to criticize our reasoning as they see fit. But to say or suggest that the Court has become an illegitimate institution or to question the Our integrity crosses an important line.”

The Chief Justice and Judge Kagan He declined to comment.

Recent polls It showed a sharp decline in public respect for the court, largely among Democrats. Americans’ views on the Supreme Court are the worst in 50 years of polling, according to a new Gallup survey published Thursday.

The June court decision in Dobbs v. Jackson, which overturned a woman’s constitutional right for abortion The question of the legality of abortion was left behind for the states, was a special focus of the anger of the Democrats. A recent WSJ poll found that 83% of Democrats said they were more likely to vote in the midterm elections because of this provision, compared to 31% of Republicans.

Other decisions made by the court, such as depriving her of the former president

Donald TrumpIts emergency request to prevent a House committee from obtaining White House records related to the attack on the Capitol on January 6, 2021, attracted more support from Democrats and independents.

Judge Kagan has been on the losing side in nearly every major case in recent times: not only the historical opinion that invalidated Roe v. Wade but also decisions that expanded access to concealed weapons; limiting the EPA’s ability to combat climate change; Increasing the presence of religion in the public education system.

The Supreme Court has done more than overturn the Roe v. Wade and allowing states to ban abortion. The Court has shown how it views rights that are not explicitly mentioned in the Constitution. WSJ’s Jess Pravin explains. Illustration: Ryan Trevis

The majority concluded that Roe was wrong and that half a century of federal abortion rights had created no expectation that women should be able to count on access to the procedure in the future. In other cases, I found, previous historical examples indicated that a New York State law of 1913 establishing cause and character requirements for concealed-arms permits violated the Second Amendment; that Congress cannot delegate “key questions” such as greenhouse gas regulation to federal agencies; and that public schools should allow school staff to perform public prayer around the clock, because such devotions cannot be seen as coercive for students.

Days after Chief Justice Roberts’ remarks in Colorado Springs, Justice Kagan suggested that a majority sought these results through the consistent application of legal methods that conservatives often say they follow. She said at Northwestern University that justice should not be “text-only when it leads to outcomes that you personally prefer”.

She also said that her focus was not on the popularity of certain decisions but on how the court retains public trust even when it makes unpopular rulings.

She said that court precedents should be respected, except in the most exceptional circumstances. She said, in an apparent reference to the positions of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Connie Barrett, all of which were confirmed during President Donald Trump’s one term in office.

Justice Kagan added that courts should act incrementally rather than make sweeping statements disrupting the legal system, a point often made by Chief Justice Roberts, including his explanation for not joining Justices Alito, Clarence Thomas, Gorsuch, Kavanaugh and Barrett in reversing the Roe case. against. Wade preceded half a century.

Democratic presidents, like Republican presidents, choose judges in the hope that they will take judicial positions in line with the party’s positions, without always realizing it.

“When you come up with specific issues, it’s not clear what Kagan wanted from her colleagues other than that they would agree with her,” said Adam White, senior fellow at the American Enterprise Institute. Conservatives on the court would say, ‘We’re definitely trying to take a principled approach, and that’s exactly why it’s so hard to find areas of compromise.

Some legal scholars believe that the current liberal wing, given precedent, will in the majority move increasingly against conservative decisions rather than bypassing them entirely.

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Does overturning the precedent threatens the legitimacy of the Supreme Court? Why and why not? Join the conversation below.

“It’s not just about imagining an overwhelmingly liberal court, but also a court that has a very skeptical view of the staring decision,” said Duke University law professor Maren Levy, using the legal term to stand for precedent. “It’s hard to imagine this with this group of judges.”

In contrast to Dobbs’ decision, which came on ideological grounds, the court generally sought consensus for significant changes to the law. In declaring school segregation unconstitutional in 1954, the nine justices, appointed by both Democratic and Republican presidents, joined Chief Justice Earl Warren’s opinion in Brown v. Board of Education. In 1973, Roe’s own decision was decided 7-2, with a majority that included the appointments of Franklin D. Roosevelt and Richard Nixon.

write to Jess Bravin at [email protected]

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