December 2, 2022

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Issue If the Law Changes When Supreme Court Justice Dies

  • Justice Elena Kagan said the “legitimacy” of the Supreme Court hinges on it not appearing partisan.
  • She said precedent should be overturned only in extreme cases, following the reversal of Roe v. Wade.
  • One lawyer told Insider following precedent helps the public know what laws actually mean.

Supreme Court Justice Elena Kagan said the public is “rightly suspicious” of the Supreme Court if the seating of a new justice can change the meaning of laws — an apparent nod to recent instances in which the bench has overturned longstanding precedence.

“People are rightly suspicious if one justice leaves the court or dies and another justice takes his or her place and all of sudden the law changes on you,” Kagan said while speaking before hundreds of judges and lawyers at a conference on Thursday, The Washington Post reported.

Kagan did not mention any specific cases or justices, but the remark echoed the dissent she and the other liberal justices issued against the conservative majority’s decision to overturn Roe v. Wade, the landmark ruling that protected abortion rights for nearly 50 years.

“The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them,” the justices wrote. “The majority thereby substitutes a rule by judges for the rule of law.”

During her remarks Thursday, Kagan said the court could maintain legitimacy and a connection with the public by only overturning precedent in extraordinary circumstances. Polls show public trust in the Supreme Court has been declining as recent decisions primarily held by its 6-3 majority have led some to view the institution as partisan.

The Supreme Court has said stare decisis, the legal doctrine that stipulates courts will abide by precedent, “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”

Doron Kalir, a professor at Cleveland-Marshall College of Law, told Insider in May that stare decisis ensures to American citizens that the meaning of the law matters and that it will remain consistent — that it won’t depend simply on who’s sitting on the bench on any given day.

“If every day the Supreme Court can overrule itself, then you don’t know what the law is,” Kalir said.

Overturning precedent can also increase the public’s perception of the Supreme Court as a political body rather than a neutral interpreter of the law.

“When the law changes, it doesn’t look like the Supreme Court. It looks like Congress,” he added.

Kagan also shared those concerns in her comments Thursday. 

“Overall, the way the court retains its legitimacy and fosters public confidence is by acting like a court, is by doing the kind of things that do not seem to people political or partisan, by not behaving as though we are just people with individual political or policy or social preferences,” she said, adding: “I’m not talking about any particular decision or any particular series of decisions. But if, over time, the court loses all connection with the public and the public sentiment, that’s a dangerous thing for democracy.”