Estrich: Kagan right on risks to High Court

Justice Elena Kagan, the former dean of Harvard Law School, publicly weighed in last week on what is really a crisis facing the United States Supreme Court. The crisis centers on ethics and, more broadly, the legitimacy of the court as an institution. The Supreme Court doesn’t have an army to enforce its decisions. They are the final arbiters of the rule of law because of their stature, not their enforcement power.

That stature has taken a beating in recent years for at least two reasons. One is the view that the Supreme Court is just another political institution, as evidenced by the number of 6-3 decisions with the six being Republican appointees and the three being those appointed by Democrats. The Dobbs case is the example cited most often, where the Court overruled its own precedent in Roe v. Wade.

“To be completely honest,” Kagan said in a wide-ranging conversation with the dean of Notre Dame Law School, “it has to be said that some of the more important cases do fall along pretty predictable lines.” Those cases include not only the abortion decision but also the court’s rulings on affirmative action, student loans, LGBTQ rights and climate change.

“When all of these are falling 6 to 3,” she said, “it doesn’t strike me as surprising that people would talk about that.”

People are doing more than talk. Surveys have found that respect for the Supreme Court is at an all-time low. The willingness to overrule precedent, Kagan noted, can easily translate into cynicism about the court itself: “Adherence to precedent is important because it prevents the court from looking like a political actor, like an ideologically driven actor.”