Kagan says court is legitimate ‘when it’s acting like a court’

U.S. Supreme Court Justice Elena Kagan said on Wednesday that a court’s legitimacy comes from carrying out the responsibilities it has and not making political or policy decisions. 

Kagan spoke at Northwestern University’s Pritzker School of Law with Dean Hari Osofsky in a moderated discussion in honor of former Justice John Paul Stevens. A portion of the street outside the law school is being renamed after the late Supreme Court justice who graduated from the school in 1947. 

Kagan said a court is legitimate “when it’s acting like a court.” 

“A court does not have any warrant, does not have any rightful authority, to do anything else than act like a court,” she said. 

Kagan said the court’s authority is limited and the court should be aware of constraints on its authority. She said an issue arises when courts become “extensions” of the political process and seek to impose personal preference on society. 

She said a court builds up a “reservoir” of public confidence and goodwill when it acts legitimately. 

“Why is it that people abide by its judgements? It’s not because they agree with everything the court does,” Kagan said. “Presumably, it’s because they have some understanding that, even if they don’t agree, that the court is doing its job, that the court is performing this critical function in a rule-of-law society, in a constitutional democracy.” 

Kagan’s remarks come days after Supreme Court Chief Justice John Roberts defended the court’s legitimacy in the face of criticism it has received for recent controversial decisions, including the June ruling that overturned Roe v. Wade. He said criticizing the court’s decisions is “entirely appropriate” but that disagreeing with them is not a basis for questioning its legitimacy. 

Kagan said during the discussion that she does not define legitimacy as what is considered popular, as the court’s focus should not be on doing what is popular. The focus should be on defending against violations of the Constitution, she said. 

Kagan said she defines legitimacy as the “underlying sense” that the court is doing its job. 

She said the court should abide by precedent except in “unusual” circumstances to ensure stability over time. She said an unusual circumstance would be when a “significant” change has happened that makes an old decision not appropriate anymore or “entirely unworkable.” 

Kagan said courts should also have established methodologies that constrain them that they follow and a commitment to not “do more than you have to.” 

She said incrementalism and minimalism are proper principles for the court to follow. 

Polls have shown trust in the Supreme Court has dropped sharply in the past few months following the overturning of Roe.