Kagan v. Roberts: Justices Spar Over Supreme Court’s Legitimacy

Liberal Justice

Elena Kagan,

in a series of public appearances, said the court’s conservative majority had diminished the high court’s credibility with decisions that track Republican priorities. Chief Justice

John Roberts,

speaking at a separate event, retorted that the court’s decisions have no bearing on its legitimacy as it carries out its mandate to interpret the Constitution. On his side was fellow conservative

Samuel Alito,

author of the majority opinion in the term’s landmark case overturning Roe v. Wade, eliminating a woman’s constitutional right to an abortion.

Across the court’s history, “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,” Justice Kagan said last week at Salve Regina University in Newport, R.I. “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.”

In July, the Obama appointee, part of the court’s three-member liberal minority alongside Justices

Sonia Sotomayor

and

Ketanji Brown Jackson,

told a judicial conference in Big Sky, Mont.: “If, over time, the court loses all connection with the public and with public sentiment, that is a dangerous thing for democracy.”

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

“Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court,” he told a judicial conference in Colorado Springs, Colo. The high court’s role, grounded in the Constitution, ”doesn’t change simply because people disagree with this opinion or that opinion or disagree with the particular mode of jurisprudence,” he said.

In a comment Tuesday to The Wall Street Journal, Justice Alito said: “It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit. But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.”

The chief justice and Justice Kagan declined to comment.

Recent polls have shown sharp drops in public regard for the court, largely among Democrats. Americans’ opinions of the Supreme Court are the worst they have been in 50 years of polling, according to a new survey from Gallup being published Thursday.

The court’s June decision in Dobbs v. Jackson, which eliminated a woman’s constitutional right to have an abortion and left the question of abortion’s legality to the states, has been a particular focus of Democrats’ ire. A recent WSJ poll found that 83% of Democrats said they were more likely to vote in the midterms because of that ruling, as opposed to 31% of Republicans.

Other decisions taken by the court, such as its 8-1 denial of former President

Donald Trump’s

emergency request to block a House panel from obtaining White House records related to the Jan. 6 attack on the U.S. Capitol, drew more support from Democrats and independents.

Justice Kagan was on the losing side in nearly every major case last term, not only the landmark opinion overruling Roe v. Wade but also decisions that expanded access to concealed weapons, limited the Environmental Protection Agency’s power to fight climate change, and increased religion’s presence in the public education system.

The majority concluded that Roe had been wrong and that a half-century of federal abortion rights created no expectation that women should be able to rely on access to the procedure in the future. In the other cases, it found that earlier historical examples indicated that New York’s 1913 state law setting cause and character requirements for concealed-weapons permits violated the Second Amendment; that Congress can’t delegate “major questions” such as greenhouse-gas regulation to federal agencies; and that public schools must permit public prayer by school employees on the clock, as such devotions couldn’t reasonably be seen as coercive to students.

Days after Chief Justice Roberts’s remarks in Colorado Springs, Justice Kagan suggested the majority sought those results over consistent application of legal methods conservatives often say they follow. A justice shouldn’t be a “textualist just when it leads to the outcomes that you personally happen to favor,” she said at Northwestern University.

She also said her focus wasn’t on the popularity of particular decisions but rather on how the court could retain public confidence even when it makes unpopular rulings.

Court precedents, she said, should be respected except in the most extraordinary circumstances. “It just doesn’t look like law when some new judges appointed by a new president come in and just start tossing out the old stuff,” she said, in an apparent reference to the positions of Justices

Neil Gorsuch,

Brett Kavanaugh

and

Amy Coney Barrett,

who were all confirmed during President Donald Trump’s single term in office.

Justice Kagan added that courts should act incrementally rather than issuing sweeping pronouncements that disrupt the legal order, a point often made by Chief Justice Roberts, including in his explanation for not joining Justices Alito,

Clarence Thomas,

Gorsuch, Kavanaugh and Barrett in reversing Roe v. Wade’s half-century precedent.

Democratic presidents, like Republican ones, choose justices in the hope, not always realized, that they will take judicial positions in line with the party’s positions.

“When you get down to specific cases, it’s not clear what Kagan would have wanted from her colleagues other than they would agree with her,” said Adam White, a senior fellow at the American Enterprise Institute. “The conservatives on the court would say, ‘We absolutely are trying to pursue a principled methodology, and that’s precisely why it’s more difficult to find areas of compromise.’”

Some legal scholars believe the current liberal wing, given its regard for precedent, would in the majority move more incrementally against conservative decisions rather than overriding them outright.

“It’s not just that you have to imagine a supermajority liberal court, but also a court that had a very skeptical view of stare decisis,” said Duke law professor Marin Levy, using the legal term for standing by precedent. “That’s hard to imagine with this set of justices.”

In contrast to the Dobbs decision, which fell along ideological lines, the court has generally sought consensus for major changes in law. When holding school segregation unconstitutional in 1954, all nine justices, appointees of both Democratic and Republican presidents, joined Chief Justice Earl Warren’s opinion in Brown v. Board of Education. In 1973, the Roe decision itself was decided 7-2, with a majority including appointees of Franklin D. Roosevelt and Richard Nixon.

Write to Jess Bravin at jess.bravin+1@wsj.com