SCOTUS Justice Warns Court Can Forfeit Legitimacy If It Overturns Too Much

( )- Earlier this week, liberal Supreme Court Justice Elena Kagan issued a warning that the court system in the U.S. turns political and ends up forfeiting its legitimacy when they overturn long-standing precedent needlessly and rule on more than they are required to do.

The comments came roughly three months after the conservative majority on the high court overturned the 1970s landmark case of Roe v. Wade, which was considered precedent for almost 50 years. The ruling in the Roe case awarded federal legal protections to women who wanted to get an abortion.

In the recent case from this summer, the Supreme Court overturned that precedent, returning the decision on how to handle the legality of abortion to the states. All three liberal justices on the high court, including Kagan, ruled against overturning the Roe precedent.

Kagan said the public’s view about the high court can become damaged when changeovers in personnel on the court end up leading to major changes in the law.

Three new conservative justices were appointed under former President Donald Trump — Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett — tilting the majority of the high court conservative. Less than two years into President Joe Biden’s term in the White House, this newly-conservative court overturned a major landmark case.

While it is hard to believe, Kagan said her comments weren’t in reference to any one particular case or a string of cases that she didn’t agree with.

Speaking at an event that was livestreamed from New York at the Temple Emanu-El, Kagan said:

“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.”

Kagan is referring to the fact that the Supreme Court could’ve ruled in favor of the state of Mississippi in the case that appeared before them this summer without overturning the federal abortion protections granted under Roe.

Chief Justice John Roberts — a conservative who always tries to find middle ground and sometimes sides with liberals — said last week that he doesn’t believe that the Supreme Court has lost any legitimacy. Speaking at an event with lawyers and judges in Colorado, he said:

“Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court.”

Roberts was attempting to find common ground between conservatives and liberals in the abortion case this summer, but he was unable to do so.

Despite those comments from Roberts, Kagan said the Supreme Court risks doing damage to its own legacy when huge changes are made to the law following huge changes in the membership of the court.

She said that the public should expect “that changes in personnel don’t send the entire legal system up for grabs.”

Kagan seemed to be referring to the belief by many that the three justices appointed by Trump were done so in a deliberate attempt to change Supreme Court precedent like abortion.