WASHINGTON (CN) — Justice Elena Kagan said the high court’s legitimacy could be marred by the public viewing the justices as an extension of the political process because its rulings are guided by changes in membership instead of adherence to the Constitution.
Speaking at Northwestern University on Wednesday, the Obama appointee said the Supreme Court needs to act like a court and remember it does not have the authority to make political or policy decisions.
“When people see [the court] as extensions of the political process, when people see them as trying 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,” Kagan said.
The high court’s public approval has taken a nosedive following the overturning of Roe v. Wade in June. Since then, questions about the court’s legitimacy have also ramped up. Kagan said she does not view legitimacy in terms of which opinions are popular — as Chief Justice John Roberts opined on earlier this week — but instead on the court doing its job.
“I would say it's when a court is legitimate when it's acted like a court,” Kagan said. “A court does not have any warrant, 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 the authority to make policy decisions. Its authority is bounded and the court should be constantly aware of that.”
To act like a court, Kagan said the court needs to follow precedent. She said judges should respect and defer to their predecessors. Kagan also said this adherence to precedent allows the public to see that the court’s decisions are not all about politics.
“If a new judge comes in, if there are new members of a court, and all of a sudden everything is up for grabs, all of a sudden very fundamental principles of law are being overthrown or being replaced, then people have a right to say, you know, what's going on there, that doesn't seem very lawlike,” Kagan said. “That just seems as though people with one set of policy views are replacing another.”
Kagan did not shy away from critiquing her fellow justices. Taking aim at a methodology some of her colleagues ascribe to, Kagan said the use of originalism has been flexible in recent opinions — a critique that has also come from many legal experts following rulings this term.
“My thinking about originalism is, I'm not sure what it means given that it seems to be sort of fluctuating over time and over cases in ways that, again, makes you concerned that the rules change as the desired outcomes change,” Kagan said.
Kagan said looking at the original meaning of something is just one piece of the puzzle for judges, but for her, it is not the most important piece of that puzzle. She went on to say the use of originalism by other justices does not follow the Constitution.
“Originalism, as some of my colleagues understand it, doesn't work so well because it's just inconsistent, I think, with the way the Constitution is written,” Kagan said.
One example Kagan gave was the age requirement to be president. The Constitution says one must be 35 years old to hold the executive office. Kagan said she is not in favor of methods of interpretation that ask if 35 years old meant something different when the Constitution was written compared to now.
Kagan said the founders knew they were writing for the ages and would have wanted their work to be interpreted as such.
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