Justice Samuel Alito says his criticism of the Supreme Court goes too far.
“It goes without saying that everyone is free to disagree with our decisions and criticize our reasoning as they see fit,” Alito said last term in Roe v. Wade wrote of the decision to withdraw to The Wall Street Journal on Tuesday. “But saying or implying that the court is becoming an illegal institution or questioning our integrity crosses an important line,” he said.
It’s rare for a justice to make such a statement when asked to comment on an ongoing controversy, but it continues this year since the justices overturned Roe and issued other controversial opinions earlier this year that have spoken openly about the court’s public stature.
Justice Elena Kagan has spoken out about the judge’s legitimacy in several appearances, and Chief Justice John Roberts appeared to walk back her comments without mentioning her by name in a speech earlier this month.
In several appearances, Kagan – without directly addressing the successful cases of the past quarter – spoke about how the courts could damage his legitimacy.
“I think judges create legitimacy problems for themselves – undermine their legitimacy – when they don’t act like courts and don’t do things that are legally recognized,” he said in New York earlier this month.
“And instead, when they go to places where they are an extension of the political process or where they are setting their own personal preferences,” he added.
Kagan cautioned that he was speaking in general terms, and did not indicate any particular decision or series of decisions. But in general, he reiterated that justices should follow precedent, echoing the sentiments of the liberal justices in a passionate joint dissent that was a landmark opinion that has been on the books for nearly 50 years after the court overturned Roe last term.
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 can be criticized, “just because people disagree with the opinions is not a basis for questioning the legitimacy of the court.”
Roberts said it is 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 ahead of Wednesday’s closed-door conference call among the nine justices as they prepare for a new term that officially begins Monday.
The justices will also meet Friday morning – along with President Joe Biden – for the inauguration of Judge Ketanji Brown Jackson.