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Disregarding Precedent Can Harm Judicial Legitimacy, Kagan Says

Sept. 13, 2022, 1:58 AM

US Supreme Court Justice Elena Kagan warned that disregarding precedent can undermine judicial legitimacy in the latest comments by a justice speaking out about the court’s recent blockbuster term and the criticism it generated.

“Judges create legitimacy problems for themselves when they don’t act like courts” and “when they instead stray into places that look like politics,” Kagan said in remarks Monday night at the the Temple Emanu-El Streicker Center in New York.

Kagan spoke three days after Chief Justice John Roberts decried attacks on the court’s legitimacy that followed the June ruling in Dobbs v. Jackson Women’s Health overturning the 50-year-old abortion precedent.

In her remarks, Kagan warned, if the “entire legal system is up for grabs” whenever one justices leaves the court and another judge comes on, “that doesn’t seem a lot like law,” Kagan said.

Kagan outlined “three key things” courts can do to ensure the public will follow their rulings.

In addition to honoring precedent, she said consistently following constraining methodologies for deciding cases and deciding only what you have to are ways for judges to ensure legitimacy.

If consistently ignored over time, “then people are entitled to say ‘what’s the deal?’”

Kagan also weighed in on the leak of the draft Dobbs opinion in May that upended custom and raised its own questions about the legitimacy of the court.

“It was shocking,” Kagan said of the leaked draft which ultimately telegraphed the final opinion.

She said the justices will likely receive a report on the internal leak investigation when they return in October.

Kagan said she doesn’t know the findings of the probe. Justice Neil Gorsuch also said Sept. 8 that a report was coming.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com