You know Supreme Court season is right around the corner because the justices are coming out of the woodwork to give speeches on their deep thoughts. Fresh off of Friday’s John Roberts speech — a desperate attempt to insist the Supreme Court is still legitimate despite cruelly taking away rights from over 50% of the country’s population — Elena Kagan spoke at Temple Emanu-El in New York.
And she pretty much has the exact opposite take on the Court’s legitimacy, saying, “Judges create legitimacy problems for themselves … when they instead stray into places where it looks like they’re an extension of the political process or when they’re imposing their own personal preferences.” Because she knows that legitimacy is earned and when nakedly political decisions happen — remember the institution is supposed to be above the fray, hence those infernal lifetime appointments — that directly impact the health and wellbeing of people, well, a hit to legitimacy is probably the least of the reactions you can expect.
As reported by MSN, her comments seemed to respond directly to the Chief:
“Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court,” Roberts said.
The chief justice has been a consistent defender of the court’s legitimacy against complaints that the court is not much different from the political branches of the government.
But Kagan said the court risks damaging its own legitimacy when big changes in the law follow changes in the court’s membership.
The public has a right to expect, she said, “that changes in personnel don’t send the entire legal system up for grabs.”
She’s right, of course. But let’s also be upfront about the Dobbs decision. It’s not *just* disagreeing with a decision but being deeply offended that the change in personnel can strip people of rights that were established precedent for 50 years. And we KNOW Roberts knows this, that’s why he wrote a concurrence in Dobbs rather than join the majority. It’s why Roberts tried to convince a fellow conservative to sign onto his decision and what fuels the speculation that someone on the right was behind the leak of the draft Dobbs decision in the first place.
But Roberts is really hoping he isn’t presiding over the Court that history will say ended the legitimacy of the institution. Kagan knows better.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).