US Kagan warns the Supreme Court must 'act like a court' to keep Americans' faith

13:20  01 october  2022
13:20  01 october  2022 Source:   usatoday.com

Elena Kagan and the Supreme Not-A-Court

  Elena Kagan and the Supreme Not-A-Court The Court’s position on a range of issues increasingly mirrors the average Republican voter’s. Perhaps not coincidentally, the public’s confidence in the Court has plunged, to the lowest point in the history of polling. Roberts was evidently responding to this when he said that “simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.” Implicitly answering him, Kagan explained why concerns about legitimacy are, well, legitimate. But her explanation was so diplomatically worded and abstract that it will be easier to understand her if we focus on one example.

WASHINGTON – Associate Justice Elena Kagan isn't waiting to get back onto the Supreme Court's bench before posing some tough questions.

As the high court readied itself for another consequential term, Kagan used a series of public appearances to describe how she believes the court should function – and to warn that Americans will lose faith if the institution is viewed as another political branch.

It goes without saying that the former solicitor general and dean of Harvard Law School chose her words carefully, declining to cite by name the landmark decision in June  to overturn Roe v. Wade, for instance, or a major ruling days later that has left many gun regulations in states across the country on shaky ground under the Second Amendment.

Supreme showdown: Alito brushes back Kagan over court 'integrity'

  Supreme showdown: Alito brushes back Kagan over court 'integrity' In an apparent response to Justice Elena Kagan's recent remarks about the Supreme Court's legitimacy, Justice Samuel Alito argued that "questioning our integrity crosses an important line."Alito, the justice who authored the 6-3 opinion that overturned 49 years of abortion precedent under Roe v. Wade this summer, made his highly rare rebuke to Kagan in a statement to the Wall Street Journal, albeit without directly naming her.

Start the day smarter. Get all the news you need in your inbox each morning.

But one need not squint too hard to see Kagan's meaning.

"The court shouldn't be wandering around just inserting itself into every hot button issue in America, and it especially, you know, shouldn't be doing that in a way that reflects one ideology or one...set of political views over another," she said Sept. 19 during a question-and-answer session at Salve Regina University in Rhode Island.

Roberts: Chief Justice defends Supreme Court's legitimacy post-Roe

Guns: Trump banned bump stocks after deadly Las Vegas shooting. Now the issue is in the Supreme Court's hands

"A court does best when it keeps to the legal issues, when it doesn't allow personal political views, personal policy views to an affect or infect, its judging," said Kagan, who was nominated by President Barack Obama in 2010. "And the worst moments for the court have been times when judges have allowed that to happen."

Abortion ruling intensifies fight over state supreme courts

  Abortion ruling intensifies fight over state supreme courts Surrounded by states with abortion bans that took effect after Roe v. Wade fell, Illinois is one of the few places where the procedure remains legal in the Midwest. Abortion-rights supporters are worried that might not last. Their concern is shared in at least a half-dozen states, and this year it's not just about state legislatures. In Illinois, Democrats hold a supermajority, and the governor, a Democrat, is expected to win reelection. Instead, Republicans could be on the verge of winning control of the Illinois Supreme Court, where Democrats currently hold a 4-3 majority.

Kagan made a nearly identical point a week earlier at Northwestern University Pritzker School of Law and again at an earlier event in New York.

Her remarks come after a term in which the court's 6-3 conservative majority consistently decided the biggest cases – on abortion, guns and religion – in ways that aligned closely to conservative political ideology. The rulings caused outrage on the left, led to protests outside some of the justices' homes and sent the court's approval rating into a tailspin.

Opinion: How should Republicans answer questions about abortion? Stand firm on the side of life.

The high court begins hearing cases during its new term on Oct. 3. On the docket so far: whether universities may consider race in admissions, whether certain matrimonial businesses may turn away customers seeking services for their same-sex weddings, and how much oversight state legislatures will have in setting the rules for federal elections.

A shaken Supreme Court returns to chambers

  A shaken Supreme Court returns to chambers Can a court riven by ideological divisions, security threats and a leak probe ever get back to normal?“I walk into this big, old, beautiful castle with these magnificent pictures on the wall and this fellow comes up to me and he said, ‘My name is Sam Alito. Good to see you,’” recalled West. “I kind of looked and said, ‘Alito ... has he got a cousin in Italy or something? I know a brother named Alito.

Only 28% of Americans have a "great deal" or "quite a lot" of confidence in the Supreme Court, down from 39% two years ago, according to a Marquette Law School poll in July.  That poll found that approval of the court had fallen to 38% compared with 66% in 2020.

Abortion: Alito dismisses criticism from global leaders of decision overturning Roe

Chief Justice John Roberts defended the court's work last month, arguing that while its opinions are open to criticism from the public, the institution's legitimacy shouldn't be called into question "simply because people disagree with an opinion."

In the abortion case, Roberts voted to uphold a Mississippi law that banned most abortions after 15 weeks of pregnancy, but he – unlike the five other conservative justices – did not see the need to overturn Roe. The chief justice joined his conservative colleagues in the Second Amendment case.

"Lately, the criticism is phrased in terms of, you know, because of these opinions, it calls into question the legitimacy of the court," Roberts said at a judicial conference in Colorado. "If they want to say that its legitimacy is in question, they're free to do so. But I don't understand the connection between opinions that people disagree with and the legitimacy of the court."

The Best American Cities to Move To Right Now, Ranked

  The Best American Cities to Move To Right Now, Ranked From Seattle to Mount Pleasant, discover the US cities that are currently enjoying the fastest population growth.

That view has drawn pushback from critics who say it's only partly about the outcome of individual cases. It's also the case, they say, that the high court repeatedly upheld its  1973 Roe v. Wade decision until former President Donald Trump nominated and won confirmation for three justices, giving conservatives a super majority. Trump repeatedly promised to nominate judges who would overturn Roe v. Wade.

Without mentioning Roberts, Kagan indicated her point was broader: That Americans need to have confidence the Supreme Court's decisions are based on judicial philosophies and doctrines that are applied evenly – regardless of whether the outcome matches the party platform of the president who nominated the justices in the majority.

"The thing that builds up reservoirs of public confidence is...the court acting like a court and not acting like an extension of the political process," she said.

"I'm not talking about the popularity of particular Supreme Court decisions," Kagan said at the Northwestern event last week. "What I am talking about is what gives the people in our country a sort of underlying sense that the court is doing its job."

This article originally appeared on USA TODAY: Kagan warns the Supreme Court must 'act like a court' to keep Americans' faith

How did the Supreme Court become so polarized? .
"Examined" looks at polarization on the U.S. Supreme Court after the decision to overrule Roe v. Wade, removing federal protections for abortion. The decision highlights how that polarization emerged.

usr: 1
This is interesting!