The comments by justices in recent weeks on the Supreme Court’s legitimacy are hurting the nation’s top court, according to Alan Dershowitz, a professor of law emeritus at the Harvard Law School.
Justice Elena Kagan has thrice in recent weeks criticized her colleagues, taking aim at justices appointed by former President Donald Trump after the court overturned Roe v. Wade. And Justices Samuel Alito and John Roberts have also weighed in.
“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,” she said during one public appearance, at the Temple Emanu-El Streicker Center in New York on Sept. 12. She added that “changes in personnel don’t send the entire legal system up for grabs.”
“The real question is whether this debate should be held in public or whether through a decision for the Supreme Court. My view is it’s much better for it to be done through decisions of the Supreme Court when each side can answer the other,” Dershowitz added.
Kagan
Kagan also criticized colleagues at two other events.“If new members of a court come in and all of a sudden everything is up for grabs, all of a sudden very fundamental principles of law are being overthrown or are being replaced, then people have a right to say, ‘What’s going on there? That doesn’t seem very law-like,’” she said at the Northwestern Pritzker School of Law.
That appeared to be a reference to the three justices appointed by Trump: Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
During an appearance at Salve Regina University, she said that “the very worst moments have been times when judges have even essentially reflected one party’s or one ideology’s set of views in their legal decisions.”
“I mean that just can’t and shouldn’t happen. There has to be a strong distinction between the two and the judges have to know their own role,” she added. “A court does not have any warrant, any rightful authority to do anything else but act like a court. When the Court becomes an extension of the political process, that’s when there’s a problem. And that’s when there ought to be a problem.”
The court’s legitimacy is drawn from “acting like a court” and “doing something that’s recognizably law-like,” according to Kagan. “And that’s when a court will build up some reservoir of public confidence and goodwill.”
Kagan’s comments appear designed to influence her colleagues, according to Edward Whelan, distinguished senior fellow and Antonin Scalia chair in constitutional studies at the Ethics and Public Policy Center.
Alito, Roberts Comment
Justices rarely comment outside of judicial conferences and law school talks, but Alito offered comments challenging Kagan’s view to The Wall Street Journal.“It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit,” Alito said. “But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.”
Alito, who was appointed by former President George W. Bush, is part of the 6–3 Republican-appointed majority on the court. Kagan and Justice Sonya Sotamayor were appointed by former Barack Obama. Justice Ketanji Brown Jackson was appointed by President Joe Biden.
Supreme Court Approval
The public view of the court has fallen in recent years and dropped more over the past year.The public information officer for the Supreme Court did not respond to a request for comment on the justices’ remarks.
The new court session begins Oct. 3. The court will keep live audio of proceedings, a policy started during the COVID-19 pandemic, enabling the public to know if the liberal minority will be able to work respectfully with the conservative majority after the month of criticism.