Justice Elena Kagan has garnered headlines for what can best be described as an attack on the Supreme Court’s legitimacy. She said at the Northwestern School of Law last week, “When courts become extensions of the political process, when people see them as extensions of the political process, when people see them as trying just to impose personal preferences on a society irrespective of the law, that’s when there’s a problem—and that’s when there ought to be a problem.” She continued that “what makes a court legitimate is that the court is acting like a court, is doing something that’s recognizably law-like. And that’s when a court will build up some reservoir of public confidence and goodwill.”
Kagan did not specifically mention Dobbs v. Jackson Women’s Health Organization in her remarks, but that was unmistakably a large component of her context as she spoke after the Court’s most recent term of her belief in stare decisis while adding anodyne-sounding disagreements with the originalist majority. Had she explicitly referenced Dobbs, from which she bitterly dissented, it would have rendered her statement more visibly absurd. That decision, of course, did not dictate nationwide abortion policy, but simply overruled the most blatant example in living memory of Supreme Court justices acting like politicians and imposing their “personal preferences on” American society in its entirety “irrespective of the law.”
During her nomination hearings in 2010, Kagan notably said that “we are all originalists.” By then, that had become a fashionable thing to say to an audience that had grown weary of judicial activism. Adherence to original meaning is the best anchor for a judge to reach objective judgments that shun personal predilections. Once on the Court, of course, Kagan became one of the most likely justices to oppose originalist positions in cases that divided the Court. She distanced herself from originalism as a theory during oral argument, and at Northwestern the other day, she showed more of her hand by saying that “looking to original meaning” is “relevant, but it’s likely not to be dispositive” for her.
Kagan’s professions of the importance of precedent, like her occasional nods to originalism, are situational. In numerous contexts, she has shown herself willing to undo precedents she disagreed with. This is true not only in Johnson v. United States (2015) or Hurst v. Florida (2016), lower-profile decisions regarding sentencing that commanded strong majorities of justices. In another Court decision regarding sentencing that she joined, in Alleyne v. United States (2013), Justice Clarence Thomas wrote, “The force of stare decisis is at its nadir in cases concerning procedural rules that implicate fundamental constitutional protections.” In Herrera v. Wyoming (2019), she joined a decision on tribal hunting rights that overturned an 1896 precedent.
Kagan is fine with voting to tear up precedents in favor of positions that have their pedigree in the Left’s political agenda rather than law. That was certainly the case with same-sex marriage in Obergefell v. Hodges (2015), overruling a liberal Court that in 1972 (a few months before deciding Roe v. Wade) did not consider the underlying argument serious enough to merit more than a summary decision. In recent years, she has found herself more often in the minority. In the campaign finance case McCutcheon v. Federal Election Commission (2014), Kagan joined a dissent that was sharply critical of a case she had argued for the losing side as solicitor general, Citizens United v. Federal Election Commission (2010). That strongly suggests that she would vote to overturn the precedent if the opportunity presented itself in the future. After the Court decided that partisan gerrymandering claims were nonjusticiable in Rucho v. Common Cause (2019) over her dissent, Kagan stated that she would never accept that decision. Her problem is less her departure from her professions of respect for precedent than her choice of politics over disciplined legal reasoning in selecting which decisions to overturn.
Now that Dobbs is also a precedent of the Court, what are the chances Kagan will accept it?