Speaking less than three months after a conservative majority of five justices overturned Roe v. Wade’s constitutional guarantee of access to abortion, Kagan said the public’s view of the court can be damaged especially when changes in its membership lead to major changes in law. He emphasized that he was not talking about a specific decision or even a series of decisions with which he disagreed. However, her remarks were similar to points made in dissenting opinions she has written or contributed in recent months, including on the abortion issue. “Judges create legitimacy problems for themselves … when they instead stray into places where they appear to be an extension of the political process or when they impose their own personal preferences,” Kagan said at Temple Emanu-El in New. York. The event was broadcast live. The 62-year-old New Yorker struck a different tone than Chief Justice John Roberts, who spoke to a gathering of judges and lawyers in Colorado Springs, Colo., last week. “Just because people disagree with an opinion is no basis for questioning the legitimacy of the court,” Roberts said. The chief justice has been a staunch defender of the court’s legitimacy against complaints that the court is not much different from the political branches of government. But Kagan said the court risks damaging its legitimacy when major changes in the law follow changes in the court’s membership. The public has a right to expect, he said, “that personnel changes will not allow the entire legal system.” Kagan joined the court in 2010, appointed by President Barack Obama. Three of the justices who are part of the court’s conservative majority were appointed by President Donald Trump. They voted to overturn Roe and also imposed limits on the Biden administration’s efforts to fight climate change, expanded gun rights and weakened the separation of church and state. The story continues In the court term that begins next month, the court will challenge the use of race in college admissions, just six years after the court upheld affirmative action in higher education. Kagan also briefly addressed the unprecedented leak of the draft opinion on the abortion case, saying it makes the justices’ jobs that much more difficult “when you can wake up tomorrow morning and there’s an opinion on the front page.” He said he does not know if the investigation Roberts ordered in May has identified the source of the leak.
