WASHINGTON – Supreme Court justices tend to wipe the slate clean at the start of a new term, the bruised feelings occasioned by tough cases eased by a summer break.
But this year, some justices are engaging in an extended and unusual public disagreement over the court's legitimacy following the decision to overturn Roe v. Wade.
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The latest comments came Tuesday night from conservative Justice Samuel Alito, the author of the June decision that took away women’s constitutional protections for abortion. But the dust-up began months earlier with liberal Justice Elena Kagan, who has made a series of comments about the court's legitimacy. On Friday, she had said she was hopeful but reserving judgment on whether a court dominated 6-3 by conservatives can again find “common ground."
On Tuesday, Alito was answering a question at a forum at the conservative Heritage Foundation in Washington when he said that “someone also crosses an important line" when saying "that the court is acting in a way that is illegitimate.”
“I don't think anybody in a position of authority should make that claim lightly,” he said without citing Kagan by name. Alito, who was nominated by President George W. Bush, joined the court in 2006. Kagan, picked by President Barack Obama, joined in 2010.
Polls show public trust in the court is at historic lows. A Gallup Poll released in late September found the level of trust and confidence in the judicial branch was at 47%, the lowest since the organization began surveying the public on the topic in the 1970s. It was 67% in 2020.
Speaking in Montana in July, Kagan said the court “earns its legitimacy” through its actions.
“Overall the way the court retains its legitimacy and fosters public confidence is by acting like a court, is by doing the kinds of things that do not seem to people political or partisan, by not behaving as though we are just people with individual political or policy or social preferences that we're, you know, making everybody live with,” Kagan said. She also said she wasn't talking about any particular decision.
Chief Justice John Roberts made his own public comments about the court's legitimacy in early September, defending the institution he has led for 17 years. “Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court,” he said.
But Kagan wasn't done, revisiting her legitimacy comments in appearances later the same month at Temple Emanu-El in New York and at Northwestern University. Then, in remarks at Salve Regina University in Rhode Island, she said the court should not be "wandering around just inserting itself into every hot button issue in America" and it especially "shouldn't be doing that in a way that reflects one ideology" or "one set of political views over another.”
Alito had also weighed in previously on the issue. In comments to The Wall Street Journal in late September he said that "saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.”
Another explosive matter that called into question how the court functions was the stunning leak of a draft of the court's opinion in Dobbs v. Jackson, the abortion ruling, nearly two months before it was officially issued.
Despite the extraordinary nature of the leak, the court has said little since about its investigation and whether anyone had been called to account for such a fundamental breach of court protocol.
Alito addressed that issue as well. “It was a grave betrayal of trust by somebody,” he said, without commenting on whether an investigation into the leak had concluded or identified the leaker.
He also said the leak made the justices who were thought to be in favor of overturning Roe v. Wade “targets for assassination" that "gave people a rational reason to think they could prevent that from happening by killing one of us.”
After the leak but before the final opinion came out, a man was arrested near the home of Justice Brett Kavanaugh, one of the justices who ultimately voted to overturn Roe v. Wade. The 26-year-old Californian called 911 himself to report he was having suicidal thoughts and planned to kill Kavanaugh. He was charged with attempted murder and has since pleaded not guilty.
The contentious debate over the court's legitimacy will not wane any time soon. The court will next hear oral arguments on Monday on whether to bar the use of race in college admissions.