NEWPORT, R.I. — US Supreme Court Justice Elena Kagan spoke at Salve Regina University on Monday, saying judicial power should be wielded with “a great deal of modesty and restraint.”
“The court shouldn’t be wandering around just inserting itself into every hot-button issue in America, and especially it shouldn’t be doing that in a way that reflects one ideology or one set of political views over another,” she said, drawing applause from the audience.
Kagan’s comments come amid criticism of recent rulings by the Supreme Court’s conservative majority, especially the 5-4 decision that overturned Roe v. Wade, eliminating a federal right to abortion that had been recognized for nearly half a century.
Kagan took part in a “fireside chat” — which was more seaside than fireside — speaking to about 1,000 people beneath a tent on the Gerety Hall lawn. Jim Ludes, Salve Regina’s vice president for strategic initiatives, interviewed Kagan, asking her about the importance of honoring precedents.
Kagan, a liberal justice who dissented in the decision to overturn Roe v. Wade, said people come to rely on legal precedents in making decisions in their lives, and she said honoring the doctrine of precedent represents an expression of “judicial humility.”
“Believe me when I tell you the judges need to be reminded sometimes of the virtue of being humble,” she said.
A new member of a court might have great ideas, she said, but the principle of honoring precedent provides a reminder that other justices in the past have thought something different. And it suggests that if something “has happened a different way for years or decades or even centuries, be like super, super cautious about overturning that,” she said.
“What are we really afraid of?” Kagan asked. “A court not acting like a court — a court acting more like a political actor or an extension of the political process. When we see the composition of the court change and then the whole legal system being kind of up for grabs and legal rules being reversed here and there, that’s what makes people worry and that’s what ought to make people worry — that something else is going on here other than applying legal principles fairly and consistently.”
She said it doesn’t “look like law” when new judges appointed by a new president come in “and just start tossing out the old stuff.”
Kagan said that in law schools, plenty of people will say that “law is politics, politics is law.” But she said it is crucial that a divide remain between the two.
“A court does best when it keeps to the legal issues, when it doesn’t allow personal political views, personal policy views to affect or infect its judging,” she said. “The worst moments for the court have been times when judges have allowed that to happen. The very worst moments have been times when judges have essentially reflected one party’s or one ideology’s set of views in their legal decisions. I mean, that just can’t and shouldn’t happen.”
Last week, during an event at Northwestern University School of Law, Kagan warned that the Supreme Court’s legitimacy could be imperiled if Americans come to view its members as trying to impose personal preferences on society.
Those comments came days after Chief Justice John G. Roberts Jr. expressed concern publicly that the court’s reputation is being unfairly battered. “I don’t understand the connection between opinions people disagree with and the legitimacy of the court,” Roberts said at a judicial conference in Colorado.
Former president Barack Obama appointed Kagan to the Supreme Court in 2010, making her the fourth woman to serve on the high court. She is a former dean of the Harvard Law School, and she was the first female solicitor general of the United States.
On Monday, Kagan was asked about how the Supreme Court justices get along with each other, even when they strongly disagree on enormously important legal issues.
She said that she and the late conservative Supreme Court Justice Antonin Scalia were “hunting buddies.”
And she drew applause when she said, “It should almost go without saying that people who disagree with each other can be friends. And we are reaching a bad state to the extent that that is not true.”
Kagan said Supreme Court justices do have lunches where they aren’t allowed to talk about work, so they talk about their families or sporting events. But she said to truly work together, judges need to engage on the work in a “collegial and collaborative way,” talking about the legal principles and trying to find “places of common ground” and “principled compromise.”
“There is nothing that better legitimates judicial action than having consensus,” Kagan said, “than having more than a bare majority of justices.”
Kagan’s visit comes as Salve Regina, a Roman Catholic university founded by the Sisters of Mercy, prepares to begin a year-long celebration of its 75th anniversary.
Kagan noted this was not her first visit to Newport: In 2013, she was the keynote speaker at the Touro Synagogue. The synagogue was celebrating its 250th anniversary and conducting the annual reading of the letter that George Washington addressed “To the Hebrew Congregation in Newport Rhode Island,” declaring that the United States “gives to bigotry no sanction, to persecution no assistance.”
She joked that she would be willing to visit Newport again if other religious affiliations want to invite her there.
Before Monday’s event, Kagan met with undergraduate students who are members of the Pell Honors Program. Named for the late US senator Claiborne Pell, a Rhode Island Democrat, the program aims to further Pell’s vision of a liberal arts education as the route to informed and engaged citizenship.