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With jabs at her colleagues, Justice Kagan warns the court ‘needs to act like a court’ 

In a wide-ranging talk, the Obama appointee remarked on issues driving the court’s legitimacy problems.

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. 


“My gosh, if there was anybody who knew about change, it was the original founders and the framers of the 14th Amendment,” Kagan said. “They knew all about enormous changes that happened in their lifetimes, and they knew that a constitution was meant to survive for the ages.” 

She also said judges need to apply methodologies consistently, not just when they fit policy views they favor. 

“If you're a textualist, you're not a textualist just when it's convenient,” Kagan said. “You're not a textualist just when it leads to the outcomes that you personally happen to favor.” 

Urging judicial restraint, Kagan also said the law should proceed slowly. This has been a common theme over the last year among some of the justices. In Dobbs, Roberts said the court had gone too far in overturning Roe v. Wade when the court could have just upheld Mississippi’s 15-week ban instead. 

“When the court gets involved in things that it doesn't have to — especially if those things are very contested in a society — it just looks like it's spoiling for trouble,” Kagan said. 

While sometimes overturning precedent is appropriate, Kagan said, it should be rare and a result of significant change. 

“You get to overrule a case when some significant change has occurred, and you don't when it hasn't,” Kagan said. 

She continued, “It's important to make sure that it's not the personal proclivities of judges that are driving decision making. It's important to ensure that the judges are appropriately respectful of what's come before.” 

The court’s emergency docket — sometimes referred to as the shadow docket — has garnered a lot of attention and criticism from court watchers and justices alike. Kagan cautioned the court’s overuse of this power. She said the court previously rarely ever used this docket for issues outside of capital cases. The rulings that come from this docket lack the briefing and full consideration of the justices that comes with cases on their normal docket. 

“You make better decisions when you have more time and more inputs and that's the problem with the shadow docket — or the emergency docket — and why it is that it should be kept for pretty rare circumstances,” Kagan said. 

Kagan also commented on nationwide injunctions from district courts and “forum shopping” — or the ability to go to a district court that may provide a favorable outcome. Noting that these issues happened across political administrations, Kagan said that one court shouldn’t be able to subvert the policy decisions of an administration. 

“It just can't be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years that it takes to go through the normal process,” Kagan said. 

Commenting on a controversial ruling from this term, Kagan criticized the conservative majority’s reliance on the major questions doctrine to hobble government agency’s action on climate change. In West Virginia v. EPA, the court said the Environmental Protect Agency went beyond its authority in the way it regulates greenhouse gas emissions from coal-fired power plants. The ruling cemented the major questions doctrine which requires agencies to have explicit authority from Congress to act on “major questions.” 

“What is a major question, you know, who knows,” Kagan said. 

Quoting the late Justice Antonin Scalia, Kagan said constraints on judges are critical to the rule of law. 

“Basically, in West Virginia, I sort of said … we shouldn't have this kind of major question exception to textualism that allows a court to say, we're not really all that comfortable with this kind of environmental regulation, or we don't really like agency action very much, we're not really big fans of regulation so we’re going to set up new hurdles,” Kagan said. 

The court has been in summer recess since releasing rulings in June. The new term beginning Oct. 3 will feature cases involving affirmative action, elections, and voting rights. 

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