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Justice Kagan has a message for judges: humble yourselves 

The liberal justice warned against the harms of forgetting precedent while looking for a path forward with her conservative colleagues.

WASHINGTON (CN) — Justice Elena Kagan warned against an emerging trend of overturning precedent at the Supreme Court on Friday, urging her fellow justices to be deferential.

“The law should be safe, and judges should be humble,” the Obama appointee said during a talk at the University of Pennsylvania. 

Kagan reminisced about her favorite opinion she has written, Kimble v. Marvel — otherwise known as the Spider-Man case. The case itself involved patent law involving the comic, and the Obama appointee used humor and wit to enforce a key idea: precedent is important. 

“I said it in my third year on the court and continue to think about why it is that this doctrine is so important,” Kagan said on Friday. 

Referencing the famous line “with great power there must also come — great responsibility,” Kagan’s 2015 opinion said maintaining stare decisis is crucial for the court.

“What we can decide, we can undecide,” Kagan wrote in 2015. “But stare decisis teaches that we should exercise that authority sparingly.” 

While Kagan wrote this opinion during her third year on the court — she has now been on the court for 13 years — she said still comes back to it again and again because of how important she thinks maintaining precedent still is. 

Stare decisis allows the law to be stable, Kagan said. Americans shape their lives around the law and when the law changes so do their lives, she added, in an apparent reference to the court’s landmark ruling last term rescinding the right to abortion. 

“When you give people a right and then you take the right away, well, in the meantime they've understood their lives in a different kind of way,” Kagan said. 

Since the Supreme Court decided Dobbs v. Jackson Woman’s Health in June, Kagan has been critical of the current court’s lack of reverence for the doctrine. On Friday she focused on how upholding precedent allows judges to maintain their humility — something Kagan admits can easily be forgotten. 

“It's a kind of hubris to say, we're just throwing that all out because we think we know better, and so that's important,” Kagan said. “There are a lot of reasons why judges are not humble. There's a lot that happens to me in my daily life to make me not humble. This is a doctrine that sort of forces judges to be humble.”

Kagan said this could also help the court avoid being viewed as political. 

While Kagan has publicly disagreed with her colleagues over the last year, she said the justices still try to maintain personal relationships in order to find more common ground on their often diverging opinions. The justices hold lunches with rules against discussing their work. Kagan said this helps the justices know each other as human beings. 

“When you all get to know each other as human beings, it's easier to talk about hard work things in a way that's productive and collaborative,” Kagan said. 

This is a sort of test the court is conducting, Kagan said. The court is testing if the justices can attempt to find compromises or if that is beyond them at this point. 

“I think that that's the test, right,” Kagan said. “Do we engage with each other in a way that attempts to find common ground, in a way that fosters principled compromise, or is that sort of beyond us?” 

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