Speaking in public on July 21 for the first time since the court’s momentous ruling in June, Kagan stressed the importance of the justices staying in their proper roles as judges and not dictating public policy.
“I’m not talking about any particular decision or even any particular series of decisions, but if over time the court loses all connection with the public and with public sentiment, that’s a dangerous thing for a democracy,” Kagan said at a judicial conference in Montana.
“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,” added Kagan, an Obama appointee who started in her position in 2010.
The nation’s top court “earns its legitimacy by what it does, by the way it behaves,” Kagan told the conference. She alleged that the court has in the past been “unconstrained and undisciplined” when justices “really just attempted to basically enact their own policy or political or social preferences” and said the current justices should guard against that.
Kagan also said justices have to be consistent when implementing their judicial philosophies and cannot abandon that approach when it will not result in their preferred outcome.
Surveys have suggested that the public is souring on the Supreme Court.
While 60 percent of respondents approved of the court in September 2021, just 38 percent expressed approval in July 2022, according to surveys conducted by the Marquette University Law School (pdf). The majority of respondents opposed the court striking down Roe.
The survey interviewed about 1,000 adults and had a margin of error of plus/minus 4 percentage points.
Only a quarter of respondents to a Gallup survey said in June they have confidence in the Supreme Court, down from 36 percent in 2021. That survey, which also had about 1,000 respondents, had a margin of error of plus/minus 4 percentage points, and was conducted before the recent decision.
In the ruling in Dobbs v. Jackson Women’s Health Organization, a majority of justices said Roe, handed down by the same court in 1973, was erroneous in its conclusion that access to abortion is a constitutional right.