U.S. Supreme Court Justice Elena Kagan Discusses Legitimacy of the Court in Visit to Law School

On Wednesday, September 14, U.S. Supreme Court Associate Justice Elena Kagan visited Northwestern Pritzker School of Law as the 2022 Howard J. Trienens Visiting Judicial Scholar and to participate in events honoring law school alumnus Justice John Paul Stevens. Her visit included a moderated Q&A with Dean Hari Osofsky as part of the Howard J. Trienens Visiting Judicial Scholar Lecture series.

During the hourlong Q&A, Justice Kagan spoke to a packed Thorne Auditorium, as well as an overflow audience in the Martin Atrium, discussing her legal path and important issues of judicial legitimacy. She expressed the importance of the Supreme Court’s “acting like a court. A court does not have any warrant, any rightful authority to do anything else but act like a court. When the Court becomes extensions of the political process, that’s when there’s a problem. And that’s when there ought to be a problem.”

Justice Kagan explained that “acting like a court” required three things above all else: “The first is [that] the court abides by precedent, except in unusual circumstances.” This, she said, prevents the public from confusing the court with politics. “If new members of a court come in, and all of a sudden everything is up for grabs, all of a sudden very fundamental principles of law are being overthrown or are being replaced, then people have a right to say, ‘What’s going on there? That doesn’t seem very law-like.’ The second thing is to have methodologies that constrain you and to apply those methodologies consistently.” The third, she said, is the commitment of the Court “not to do what’s more than you have to.” When the Court gets involved in things it doesn’t have to, she said, “it just looks like it is spoiling for trouble.”

She clarified that the popularity of the Court’s rulings is not the issue; rather, the Court builds public confidence when it acts legitimately. “Why is it that people abide by its judgments? It’s not because they agree with everything the court does,” Justice Kagan said. “Presumably, it’s because they have some understanding that, even if they don’t agree, that the court is doing its job, that the court is performing this critical function in a rule-of-law society, in a constitutional democracy.”

Justice Kagan reinforced the importance of stare decisis, noting that abiding by precedent “creates stability over time” and solidifies a court’s legitimacy. Exceptions should be made, she said, only in “unusual” circumstances: when a “significant” change has happened that makes an old decision not appropriate anymore or “entirely unworkable.” She pointed specifically to advancements in technology and sweeping social changes as such circumstances.

Her discussion of judicial legitimacy also focused on the expanded use of the Supreme Court’s emergency docket, also known as shadow docket, which involves emergency actions taken by the Court that do not go through full process of creating a merits opinion. “When I was clerking, the emergency docket was just something that was used for capital cases. Someone was about to be executed the next day and there were legal claims to be heard…that was an emergency,” she said. But in most cases, she said, the merits decisions are necessary. “That step-by-step judicial decision making is a crucial importance. It exists for a reason….You make better decisions when you have more time and more input.”

Justice Kagan reiterated the importance of consistency in the context of textualism. She explained, “If you’re a textualist, you’re not a textualist just when it’s convenient. You’re not a textualist just when it leads to the outcomes that you personally happen to favor.”

She also expressed her concerns about current approaches to originalism. “I’m not sure what it means, given that it seems to be sort of fluctuating over time and over cases in ways that make you concerned that the rules change as the desired outcomes change,” Justice Kagan said. The framers of the Constitution, she said, “knew that they were writing for the ages…and so they wrote in broad terms. They couldn’t possibly have thought that 250 years later people would be going, ‘What exactly did they mean when they said equal protection of the law?’”

Justice Kagan, who served as Dean of Harvard Law School from 2003 to 2009, concluded the conversation by giving advice to incoming law students: “Take risks. Don’t follow the path in law that everyone else follows just because everyone else is following it,” she said. “The most important thing you can do in a legal career, for yourself and the legal community, is to find the thing that gives you a sense of purpose and meaning in your work life.”

The Howard J. Trienens Visiting Scholar Program was established in 1989 by partners of Sidley Austin LLP to honor esteemed alumnus Howard Trienens, in recognition of his service to the firm and to Northwestern. Mr. Trienens joined Sidley Austin in 1949 as an associate, became a partner in 1956 and headed Sidley’s Executive Committee from 1977 to 1993. Each year, a leading jurist is invited to Northwestern Pritzker Law to lecture and to offer alumni, students and faculty with a perspective on the judicial process and contemporary legal issues.

Watch the full conversation here.