Justice Kagan Warns SCOTUS Legitimacy Could Be In Jeopardy

on September 13, 2016 in Washington, DC.
U.S. Supreme Court Associate Justice Elena Kagan participates in a discussion at the George Washington University Law School on September 13, 2016 in Washington, DC. (Mark Wilson/Getty Images)

As public confidence in the Supreme Court plummets, Supreme Court Justice Elena Kagan on Thursday warned of the dangers of the high court losing its legitimacy if its decisions are or appear to be motivated by personal politics.

Kagan, one of the Supreme Court’s liberal justices, discussed the public’s increasingly negative view of the court during a judicial conference in Big Sky, Montana; her first public appearance since her conservative colleagues struck down Roe v. Wade.

The justice said that people lose trust in the Supreme Court if it’s perceived as trying to dictate public policy based on the justices’ political ideology.

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

“We have a court that does important things, and if that connection is lost, that’s a dangerous thing for the democratic system as a whole,” she continued.

However, the justice made it clear she wasn’t arguing that the Supreme Court ought to simply follow public opinion.

“By design, the court does things sometimes that the majority of the country doesn’t like,” Kagan said.

But if the court does so, then people have to be able to trust that it made its unpopular decision as a non-partisan institution, she argued.

“Overall, the way the court retains its legitimacy and fosters public confidence is by acting like a court, is by doing the kind of things that do not seem to people political or partisan,” Kagan said. “By not behaving as though we are just people with individual political or policy or social preferences.”

Kagan said that people are “rightly suspicious” if one justice gets replaced by another “and all of sudden the law changes on you.”

Though the justice didn’t give a specific example, the situation she described was exactly what happened after Republicans packed the Supreme Court with conservatives during the Trump era, paving the way for the high court to dismantle Roe.

According to a Gallop poll taken last month, only 25 percent of Americans say they have “a great deal” or “quite a lot” of confidence in the high court, even less than the year before, when it was 36 percent.

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