Justice Samuel Alito says the criticism of the Supreme Court goes 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 wrote the decision to overturn Roe v. Wade last term, told The Wall Street Journal Tuesday. “But to say or imply that the court is becoming an illegitimate institution or to question our integrity crosses an important line,” he said.
It’s rare for a justice to issue such a statement when asked for comment on an ongoing dispute, but continues a year in which justices have spoken openly about the court’s public status since overturning Roe and making other controversial statements in the past in the year.
Justice Elena Kagan spoke in several appearances about the court’s legitimacy, and Chief Justice John Roberts appeared to push back on her comments without mentioning her by name during a conversation earlier this month.
In a series of appearances, Kagan — without directly addressing the blockbuster cases last term — talked about how courts can damage its legitimacy.
“I think judges create legitimacy problems for themselves — undermine their legitimacy — when they don’t behave as much as 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 appears they are an extension of the political process or where they are imposing their own personal preferences,” she added.
Kagan cautioned that she was speaking in general terms and not pointing to any decision or series of decisions. But she reiterated that judges should generally abide by precedent — echoing sentiments expressed by the liberal justices in a fiery joint dissent after the court overturned Roe last term, a landmark opinion that had been on the books for nearly 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 noted on the point that “simply because people disagree on opinions is no basis for questioning the legitimacy of the court.”
Roberts said it is the court’s job to interpret the Constitution — a job 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 call among the nine justices as they prepare for the new term to officially begin Monday.
The justices will also meet Friday morning — along with President Joe Biden — to install Justice Ketanji Brown Jackson.