U.S. Supreme Court’s Kagan says justices must find ‘common ground’ again

7:24 pm Friday, October 21st, 2022

By Nate Raymond

(Reuters) – Liberal Justice Elena Kagan on Friday expressed hope that her colleagues on the conservative-dominated U.S. Supreme Court could get back to finding “common ground,” saying it risked looking political by continuing to overturn legal precedents.

Speaking at an event at the University of Pennsylvania, Kagan did not explicitly reference the Supreme Court’s decision in June to overturn the landmark 1973 Roe v. Wade ruling that legalized abortion nationwide.

But Kagan, who dissented from that decision powered by the court’s conservative majority, argued that judges and justices should be “humble” and respect past precedents interpreting laws and rights that people build their lives around.

“If you give people a right, and then you take the right away, well, in the meantime they’ve understood their lives in a different kind of way,” Kagan said during a discussion with UPenn President M. Elizabeth Magill. “So law should be stable.”

The comments mirrored similar remarks Kagan, one of the court’s three liberals, has made in the months since the abortion decision, in which she has warned the court risked forfeiting its legitimacy in the view of the public.

The Supreme Court gained its 6-3 conservative super-majority thanks to three justices named by former Republican President Donald Trump: Neil Gorsuch in 2017, Brett Kavanaugh in 2018 and Amy Coney Barrett in 2020.

Cases on the court’s docket this term present opportunities for the court’s conservative justices to flex their muscles further by weakening the landmark Voting Rights Act and barring the consideration of race in college admissions.

“If you have judges and they come onto a court and they say, we’re sort of overthrowing the apparatus, and we’re overthrowing legal rules, it just starts not to look like law anymore,” Kagan said.

That could result in a “tit for tat” situation in the future when other new justices join the court, she said, fueling “jolts to the system” that will make it look “more like a political institution.”

“Time will tell whether this is a court that can get back to finding common ground, to ratcheting down the level of decision making so we can reach compromises,” Kagan said.

(This story has been refiled to correct typo in the word “muscles” in paragraph 7.)

(Reporting by Nate Raymond in Boston; Editing by Bill Berkrot)