Why did the court overrule Roe v. Wade? Why did it change its mind on affirmative action? Kagan was unusually frank. “You’re right that there have been times recently where there have been ideological divides with one side overturning precedent. … When courts just overrule things, willy-nilly, it’s usually because, or sometimes it’s because, new judges have come on the scene.”
The new judges are, obviously, the Trump appointees who have given the court a solid conservative majority. But it is not only the addition of new justices, and the overruling of precedent, that have contributed to the crisis of legitimacy. On the same day Kagan spoke, ProPublica published a new report about Justice Clarence Thomas, who has been criticized for not disclosing financial ties to a Texas billionaire, and twice attended an event for donors to the political network established by two other billionaires, Charles and David Koch. ProPublica has also singled out Justice Samuel Alito for taking a luxury trip with a billionaire who often has cases before the Supreme Court.
Thomas and Alito are solidly in the conservative bloc, trips or no trips. But the appearance of impropriety is telling. There have been calls for the Supreme Court to adopt an ethical code that would prevent such appearances, but to date, the court has failed to act.
I’ve known Elena since her law school days. She does not speak out rashly. She clearly knew her words would get attention, and they should. Kagan’s remarks increase the pressure on the court to act. And it should, for its own sake, and the sake of the country.