Justice Kagan speaks out

Justice Elena Kagan, the former dean of Harvard Law School, weighed in last week publicly on what is really a crisis facing the United States Supreme Court. The crisis centers on ethics and, more broadly, the legitimacy of the court as an institution. The Supreme Court doesn't have an army to enforce its decisions. They are the final arbiters of the rule of law because of their stature, not their enforcement power.

That stature has taken a beating in recent years for at least two reasons. One is the view that the Supreme Court is just another political institution, as evidenced by the number of 6-3 decisions with the six being Republican appointees and the three being those appointed by Democrats. The Dobbs case is the example cited most often, where the Court overruled its own precedent in Roe v. Wade.

"To be completely honest," Kagan said in a wide-ranging conversation with the dean of Notre Dame Law School, "it has to be said that some of the more important cases do fall along pretty predictable lines." Those cases include not only the abortion decision but also the court's rulings on affirmative action, student loans, LGBTQ rights and climate change.

"When all of these are falling six to three," she said, "it doesn't strike me as surprising that people would talk about that."

People are doing more than talk. Recent surveys have found that respect for the Supreme Court has fallen to all-time lows. The court's willingness to overrule precedent, Kagan noted, can easily translate into cynicism about the court itself. "Adherence to precedent is important because it prevents the court from looking like a political actor, like an ideologically driven actor ... It makes people think that courts are just sort of making it up on the fly. And that's an extremely damaging thing for the judicial system and, I think, for our country."

Why did the court overrule Roe v. Wade? Why did it change its mind on affirmative action? Kagan was unusually frank. "You're right that there have been times recently where there have been ideological divides with one side overturning precedent. I'm hopeful that it won't have that year after year, case after case. At least it shouldn't. ... When courts just overrule things, willy-nilly, it's usually because, or sometimes it's because, new judges have come on the scene."

The new judges she is referring to are, obviously, the Trump appointees who have given the court a solid conservative majority. But it is not only the addition of new justices, and the overruling of settled precedent, that have contributed to the crisis of legitimacy. On the same day that Kagan spoke out, ProPublica published a new report about Justice Clarence Thomas, who has been criticized for not disclosing his financial ties to a Texas billionaire, and twice attended an annual event for donors to the political network established by two other billionaires, Charles and David Koch. ProPublica has also singled out Justice Samuel Alito for taking a luxury trip with a billionaire who often has cases before the Supreme Court.

I'm not suggesting that either of those justices changed their votes on critical cases because of the gifts or trips or vacations. Thomas and Alito are solidly in the conservative bloc, trips or no trips. But the appearance of impropriety is telling. There have been calls for the Supreme Court to adopt an ethical code that would prevent such appearances, and such gifts, but to date, the court has failed to act. Last week, Kagan joined Justice Brett Kavanaugh in calling for action by the justices. Without naming names as to who the holdouts are, she said "it would be a good thing for the Court to do," and twice expressed "hope (that) we can make progress ... There are, you know, totally good-faith disagreements or concerns, if you will," she said. "There are some things to be worked out. I hope we can get them worked out."

I've known Elena since her law school days. She does not speak out rashly. She clearly knew her words would get attention, and they should. Supreme Court justices are famous for not speaking out publicly. The ethics debate has changed that. Kagan's remarks increase the pressure on the court to act. And it should, for its own sake, and the sake of the country.

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