Supreme Court Justice Elena Kagan, speaking Wednesday at Northwestern Pritzker Law School, warned the court’s legitimacy is threatened if decisions are seen as an “extension of the political process.”
Without going into detail about specific recent rulings such as the overturning of abortion rights, Kagan said justices cannot be rewriting statutes to “conform to their own policy preferences.”
Or put more bluntly, the court should not, Kagan said, be seen as “spoiling for trouble.”
Kagan spoke at the NU Law School Howard J. Trienens Visiting Judicial Scholar lecture at a time when conservatives hold six of the nine seats on the court and there is growing concern rulings are taking a sharp right turn - such as striking down Roe v. Wade in June, ending abortion rights at the federal level that had been seen as settled law.
Her comments about the Supreme Court - and the need for judges to not be seen as political - come with continuing concern that the court could strike down other rights seen as established, such as same-sex marriage and access to contraception.
Later on Wednesday, Kagan was to attend the dedication ceremony for the Justice John Paul Stevens Courtyard at the law school, with a nearby portion of Chicago Avenue to be named in honor of the late Chicago-born justice.
Former President Barack Obama tapped Kagan to replace Stevens when he retired. Stevens, who died in 2019, received his law degree from Northwestern. Kagan’s first teaching job was at the University of Chicago, so she is no stranger to the city.
In an hour-long conversation with law school Dean Hari Osofsky, Kagan said:
ON CHICAGO’S ABNER MIKVA: Kagan clerked for the late Mikva - the rare figure who served in all three branches of government as a U.S. House member, federal appeals court judge and White House counsel under ex-President Bill Clinton. He also brought her into the Clinton White House. Kagan said Mikva was “probably the greatest mentor I’ve ever had.”
WARNING ABOUT COURTS BECOMING “EXTENSION OF THE POLITICAL PROCESS:” Kagan said the court should be “constantly aware” of the “constraints on its authority, the bounds beyond which it shouldn’t go.
“When courts become an extension of the political process, when people see them as extensions of the political process, when people see them as trying just to impose personal preferences on a society irrespective of the law - that’s when there’s a problem, and that’s when there ought to be a problem.”
WHAT MAKES A COURT “LEGITIMATE:” What makes a court “legitimate is that the court is acting like a court, doing something that is recognizably law ... and that’s when a court will build up some reservoir or public confidence and goodwill.”
THREE THINGS ON WHAT IT MEANS FOR A COURT TO ACT LIKE A COURT: Expanding on court legitimacy, Kagan said there are “three things above all else. ...The first is the court abides by precedent, except in unusual circumstances ... when we’re talking about the legitimacy of the court, it prevents people from thinking that it’s all about politics.
“... The second thing is to have methodologies that constrain you and to apply those methodologies consistently. And the second being quite as important as the first. I mean, what is it that separates law from politics? It is a sense of constraint. It is a sense that judges can’t do just whatever they want.”
“... I suppose the third thing is just a commitment not to do what’s more than you have to.”
NO “SPOILING FOR FOR TROUBLE:” The court should not “proceed by leaps and bounds.” Rather, “it should proceed incrementally and building on what has come before. And, in the sense that when the court gets involved and things that it doesn’t have to, especially if those things, you know, are very contested in a society, it just looks like it’s, you know, spoiling for trouble. It looks like it just wants to decide those matters, even though it doesn’t really have to given them the case before it. So that makes people again, you know, rightly suspicious that the court is doing something not particularly court-like and law-like.”
ON NEW JUSTICE KETANJI BROWN JACKSON: Jackson was sworn in last June, to replace retiring Justice Stephen Breyer, so the 6-3 balance did not change. Kagan, speaking about Jackson, said, “every new justice in some sense, creates a new court.”
