Justice Elena Kagan Declares ‘Judges Create Legitimacy Problems for Themselves’ After Roberts Pushes Back on Criticism of Court

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Justice Elena Kagan accused the Supreme Court of risking its legitimacy by stepping outside its parameters and becoming too political.

During a Monday event at Temple Emanu-El’s Streicker Center in New York, Kagan accused judges of creating their own “legitimacy problems.” Her talk follows Chief Justice John Roberts pushing back against critics questioning the legitimacy of the Supreme Court following the overturning of Roe v. Wade.

“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, according to CNN.

Kagan added judges undermine their legitimacy when they “stray into places where it looks like they are an extension of the political process or where they are imposing their own personal preferences.”

The judge noted she was not referring to any specific case and was only speaking in general terms, though the comments stand somewhat in contrast to recent remarks from Roberts.

“Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court,” Roberts said last week, adding later that “political branches” and public opinion should not influence the court’s decisions.

The Supreme Court has been under heavy scrutiny since the overturning of Roe v. Wade. Roberts’ comments even followed Vice President Kamala Harris calling the court an “activist court” over the decision. Kagan did not comment specifically on the issue, though she did reveal that findings from an investigation into the opinion draft leak preceding the official decision should be released soon.

“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. Kagan referred to the leak as “horrible” and said judges should be given a status update by the end of the month.

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