The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Thursday, Justice Kagan spoke to the Ninth Circuit Judicial Conference. She was careful to avoid talking about Dobbs directly, but she clearly alluded to the case. And, according to the Washington Post, she invoked the concept of "legitimacy" as defined by Casey. (Update: C-SPAN posted the video here.) That is, the Court's "legitimacy" is linked to public perception. Justice Kagan stated:
"I'm not talking about any particular decision or any particular series of decisions. But if, over time, the court loses all connection with the public and the public sentiment, that's a dangerous thing for democracy," Kagan said. "We have a court that does important things, and if that connection is lost, that's a dangerous thing for the democratic system as a whole." . . .
"Overall, the way the court retains its legitimacy and fosters public confidence is by acting like a court, is by doing the kind of things that do not seem to people political or partisan, by not behaving as though we are just people with individual political or policy or social preferences," she said.
That was certainly the conception of legitimacy advanced in Casey, and (likely) drafted by Justice Souter. For three decades, Casey was precedent on precedent. But that is not the only conception of legitimacy.
The Dobbs Court emphatically repealed and replaced that notion of legitimacy. Now, legitimacy is defined by following written law, without regard to public perception. Linda Greenhouse's column laments that shift:
. . . Justice Alito actually had the gall to write that "we do not pretend to know how our political system or society will respond to today's decision." Polls conducted before the opinion's release showing that upward of two-thirds of Americans wanted to retain a right to abortion offered a hint and were perhaps what led to Justice Alito's self-righteous declaration: "We cannot allow our decisions to be affected by any extraneous influences such as concern about the public's reaction to our work."
Dobbs overruled Casey's undue burden framework, but also overruled the precedent on precedent. Justice Scalia would often joke that the Constitution is dead, dead, dead. We should say the same for Casey's precedent on precedent. It's dead, dead, dead.
I made this point in my recent Newsweek essay:
During oral argument, Justice Breyer worried that by overruling "a super case like" Roe, the people will "say, no, you're just political, you're just politicians." He warned that such politicization will "kill us as an American institution." Justice Sotomayor stated the issue more bluntly. She remarked that sponsors of the Mississippi law limiting abortion after 15 weeks supported it because of the "new Justices on the Supreme Court." Sotomayor asked, "Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?" The Court's progressives were imploring the conservatives to avert a Souter-esque legitimacy crisis. Yet, these pleas went unanswered. . . .
This redefined conception of legitimacy upsets long-standing views about the Court. But more importantly, Dobbs compels a recalibration by the Court's critics. In the past, progressives repeatedly warned that overruling a precedent like Roe would undermine the Court's legitimacy. If Dobbs is any indication, these barbs will be met with a collective yawn.
The critics of Dobbs must recognize this new paradigm, regroup, and advance a new strategy.