Justice Warns Court Can Forfeit Legitimacy If It Overturns Too Much

Last week, Liberal Justice Elana Kagan claimed that overturning precedent too many times could make the Supreme Court look political and put its legitimacy at risk.

Speaking at Temple Emanu-El in New York last Monday, Justice Kagan said public opinion of the court could be damaged when appointments of new justices lead to changes in the law.

She accused the justices of creating “legitimacy problems” for the court by giving the appearance that they are “an extension of the political process” or by “imposing their own personal preferences.”

Ah, okay. So it’s the justices’ fault that the Democrat Party and the media have accused the Supreme Court of being illegitimate for the last several years.

Kagan said the public should expect that the appointment of new Supreme Court justices doesn’t “send the entire legal system up for grabs.”

Kagan’s comments are striking when compared to those made by Chief Justice Roberts in Colorado just days before where he defended the authority of the Supreme Court to interpret the Constitution, arguing that its legitimacy shouldn’t be questioned simply because some people disagree with the Court’s decisions.

Roberts said neither the political branches nor public opinion should be a guide for what is an “appropriate decision.” He said if the Court isn’t able to “retain its legitimate function of interpreting the Constitution,” nobody would want to “take up that mantle.”

The Chief Justice described the past year as unusual and difficult, noting that the public has not been permitted inside the Court since the 2020 COVID lockdowns. He also expressed frustration with seeing the Supreme Court surrounded by barricades, calling the sight “gut-wrenching.”

The barriers were erected in May after the draft opinion from Justice Samuel Alito was leaked to the press.

When asked to reveal something the public may not know about the Supreme Court, Chief Justice Roberts pointed to the collegiality among the justices and the Supreme Court tradition of always shaking hands before starting conferences or taking the bench.

He said while the justices might disagree about a decision, they all eat together in the court’s dining room where their conversations are about everything but work. Roberts said this doesn’t come from “fake affection” but rather from the respect that comes from the push and pull of sharing ideas.

“We have a common calling,” Roberts explained, “and we act like it.”