Justice Samuel Alito says criticism of the Supreme Court is going too far.
“It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit,” Alito, who penned the decision reversing Roe v. Wade last term, told The Wall Street Journal on Tuesday. “But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line,” he said.
It is rare for a justice to issue such a statement when asked for comment about an ongoing controversy, but continues a year in which justices have spoken openly about the court’s public stature since overturning Roe and issuing other controversial opinions earlier this year.
Justice Elena Kagan in several appearances did talk about the court’s legitimacy, and Chief Justice John Roberts seemed to push back on her comments without mentioning her by name during a talk earlier this month.
In a series of appearances, Kagan – without directly addressing the blockbuster cases last term – spoke about how courts can damage 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 in New York earlier this month.
“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 had a different view of the court’s legitimacy.
In a speech in Colorado, he said that while all of the court’s opinions are open to criticism, he pointedly noted that “simply because people disagree with opinions is not a basis for questioning the legitimacy of the court.”
Roberts said that it’s the court’s job to interpret the Constitution – a task that should not be left to the political branches or driven by public opinion.
Alito’s comments to the Journal came before Wednesday’s closed-door conference session among the nine justices as they prepare for the new term to officially begin Monday.
The justices will also come together Friday morning – along with President Joe Biden – for the investiture of Justice Ketanji Brown Jackson.