At an event at Northwestern University in Chicago, Kagan distanced himself from conservative Chief Justice John Roberts who, in a public appearance Friday in Colorado Springs, Colorado, said the court’s legitimacy should not to be questioned “simply because people disagree with an opinion.”
Ms. Kagan said that on the question of legitimacy, the popularity of the court’s decisions is not in question. On the contrary, she added, “a court is legitimate when it acts as a court”, respecting precedents and not asserting its authority to make political or policy decisions.
“When the courts become extensions of the political process, when people think of them as extensions of the political process, when people think of them as simply trying to impose personal preferences on society, regardless of the law, that’s where ‘there is a problem,’ said Kagan.
Kagan did not mention specific rulings in his comments on the court’s legitimacy.
The Court’s 6-3-member conservative majority during its last term, which ended in June, illustrated how it was poised to assert its power with dramatic rulings on abortion, guns and violence. other topics.
Kagan, who has served on the Court since 2010, dissented in the June rulings that overturned the Roe v. Wade in 1973, which legalized abortion nationwide and recognized for the first time that the US Constitution protects the right of an individual to carry a handgun in public for self-defense.
Ms Kagan said it was important for courts to respect precedents to ensure stability over time and only overturn past decisions in “very unusual cases”.
“If there are new members on the court, and all of a sudden everything is called into question, all of a sudden very fundamental principles of law are overturned or are, you know, replaced, then people have a right to say, ‘What’s going on here? That doesn’t seem very legal,’ Kagan said.
The Supreme Court includes three conservative justices appointed by former President Donald Trump: Neil Gorsuch in 2017, Brett Kavanaugh in 2018 and Amy Coney Barrett in 2020.
Kagan also criticized a way of interpreting the Constitution favored by some conservatives known as originalism, which focuses on how the text was understood when it was written. The Constitution was ratified in the 18th century, with amendments in the 19th and 20th centuries.
“I’m not sure what that means, since it seems to fluctuate over time and business in a way that makes you worry that the rules will change as the desired outcomes change,” Kagan said of originalism.
Kagan said originalism “doesn’t work so well” in part because it’s hard for judges to find definitive legal answers from historical evidence that can support one side or the other. Kagan cited as an example the disputes that led to court rulings in 2008 and last June expanding the right of people to own handguns both in their homes and in public.
Furthermore, Kagan said that originalism is “incompatible” with the way the Constitution was drafted.
Its drafters have written broad, even vague protective statements such as “due process of law” or “equal protection of the laws” to accommodate a changing world, Kagan said.
“They knew the country was going to change,” Kagan said. “They knew that a Constitution was meant to survive through the ages.”
The Court’s next term begins in October and includes other major cases, including conservative challenges to affirmative action policies used by colleges and universities to increase the number of black and Hispanic students on their campuses. Ketanji Brown Jackson, recently nominated by President Joe Biden, joined Kagan and Sonia Sotomayor in the court’s Liberal bloc.