Supreme Court Justice Elena Kagan called the unprecedented leak of a draft opinion striking down Roe v. Wade last term “horrible” and said she expects justices to be given a status update by the end of the month on an investigation into the leak.
“I don’t know anything. I suspect my colleagues don’t know anything, except for the chief justice maybe, about what the investigation has turned up if anything,” she said of Chief Justice John Roberts and the probe he launched late last spring. But she called the leak “shocking” and an “obvious, blatant violation of the court’s rules.
If investigators have “not figured out who the perpetrator was” the next serious questions is how the court prevents the same thing from happening again, she said. The court, she added, depends upon its deliberations and reasoned decisions, “and you can’t do that if you know that you might wake up tomorrow morning and there is a decision and it is on the front page of newspapers.”
Kagan appeared at Temple Emanu-El’s Streicker Center for a conversation with Judge Alison J. Nathan who sits on the United States Court of Appeals for the Second Circuit.
The talk came less than a month before the new term is set to begin – on October 3 in the shadow of the midterm elections – when the justices will consider issues including voting rights, immigration, affirmative action, environmental regulations and religious liberty.
Kagan also spoke about the legitimacy of the court in comments that contrasted at times with remarks delivered Friday by Roberts.
For his part, Roberts defended the integrity of the court and said he didn’t understand the connection “between opinions that people disagree with and the legitimacy of the court.”
“You don’t want public opinion to be the guide of what the appropriate decision is,” Roberts said, speaking before a conference of judges in Colorado.
But Kagan suggested Monday that how the court is perceived by the public is vital to its legitimacy.
“I think judges create legitimacy problems for themselves – undermine their legitimacy – when they don’t act so much like courts and when they don’t do things that are recognizably law,” she said.
“And when they instead stray into places where it looks like they are an extension of the political process or where they are imposing their own personal preferences,” she added.
Kagan cautioned that she was talking in general terms, and not pointing to any one decision or series of decisions. But she reiterated that, in general, judges should abide by precedent – echoing sentiments the liberal justices made in a fiery joint dissent after the court reversed Roe last term, a landmark opinion that had been on the books for almost 50 years. (Roberts voted against overturning Roe in the case, but he agreed with the majority that the Mississippi law at issue should be allowed to go into effect.)
Following precedent, Kagan said, amounts to a “doctrine of stability in the law” and a “doctrine of humility.” It respects the work of past judges and it ensures that people don’t consider courts political actors, she said.
“Because if one judge dies or leaves a court and another judge comes in and all of a sudden the law changes on you – what does that say?” she asked.
“That just doesn’t seem a lot like law if it can depend so much on which particular person is in the court,” she added.
This story has been updated with additional details.