Justice Elena Kagan spoke on Wednesday about the legitimacy and duty of the Supreme Court, saying that its role is not to make policy or political decisions and that “the court shouldn’t be doing things that are popular.”
The Democratic-appointed associate justice was speaking at the Northwestern University’s Pritzker School of Law with Dean Hari Osofsky in front of a live audience at an event honoring former Justice John Paul Stevens. Kagan said that she does not describe legitimacy as performing actions that are considered popular, noting the court’s job is not to make popular decisions. Rather, it is to uphold the values and defend against violations of the Constitution.
Speaking less than three months after the high court ruled 6-3 to overturn nearly 49 years of abortion access precedent established under Roe v. Wade, which Kagan joined in the minority, she said Wednesday that she wasn’t “talking about the popularity of particular Supreme Court decisions.” She said she was referring to what gives people in the nation “an underlying sense that the court is doing its job.”
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“What I would say is a court does not have any want. It does not have any rightful authority to do anything else than act like a court. It doesn’t have the authority to make political decisions. It doesn’t have authority to make policy decisions. Its authority is bounded and … the court should be constantly aware of that,” the justice added.
Kagan said that when the court acts legitimately, it builds “up some reservoir” of public trust in the country.
“Why is it that people abide by its judgments? It’s not because they agree with everything the court does,” Kagan said. “Presumably, it’s because they have some understanding that even if they don’t agree, that the court is doing its job, that the court is performing this critical function in a rule-of-law society, in a constitutional democracy.”
She also upheld the notion that the high court should follow precedent aside from “unusual” circumstances to maintain overall stability as a nation. Kagan said an example of an unusual circumstance would be when a “significant” change has happened that makes an old decision not appropriate anymore or “entirely unworkable.”
Kagan’s remarks come five days after Chief Justice John Roberts defended the legitimacy of the court at the 10th Circuit Bench & Bar Conference at the Broadmoor resort in Colorado, where he contended that criticism over the court’s decisions is appropriate but should not call into question the legitimacy of the court.
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Speaking at a separate event on Sept. 12, Kagan recently stated her belief that an update could arrive before the end of this month regarding the investigation into the May 2 draft opinion that leaked to the press, an event that prompted months of protests and threats against high-court justices.
A recent Pew Research Center poll showed just 48% of the public sees the Supreme Court favorably, which aligns most closely to the perception of the high court in the 2015 ruling over Obergefell v. Hodges that legalized same-sex marriage.
