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Justice Kagan Is Super Peeved Her Colleagues On The Supreme Court No Longer Care About Precedent

Plus, find out which case she thinks was decided 'abysmally wrong.'

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(Photo by Brendan Smialowski/Getty Images)

Supreme Court watchers know that there’s been an assault on legal precedent recently — that’s a big part of what makes anti-choice laws like Alabama’s so scary. It turns out some Supreme Court justices are also concerned about this disturbing trend.

Elena Kagan spoke at at Georgetown University Law Center yesterday, and she had a lot to say about some of her Supreme Court colleagues’ penchant for overturning precedent. (As you may recall, four cases were granted cert this Term where the petitioner advocated for overruling settled law, and in two of those cases, the petitioner was successful. Kagan voted to maintain the precedent in all four cases.) Indeed, as reported by Law360, Justice Kagan called their willingness to overturn cases “a little bit immodest.”

She went on to wax about the importance of settled law:

[T]he “worst thing people could think about our legal system” is that the law changes drastically depending on the “preferences or predilections” of who is on the Supreme Court, “so you can never count on anything and you can never understand law as a stable continuing presence in people’s lives.”

“I think also the doctrine of precedent is one of humility,” she said. “And that means not thinking that, ‘Uh, here I am. And I just look at this case differently than the way many, many judges have looked at it in the past. And my opinion is better than theirs, so I’m just going to reverse what they say.'”

Of course, Justice Kagan does leave room for cases to be overturned, where the caselaw has become an outlier to changing standards or is “morally repugnant”:

But while she said that adhering to precedent should be a “heavy presumption,” Justice Kagan also said there were reasons to depart from past decisions of the court. In some cases, she said, society has evolved to the point where the precedent is “morally repugnant.” More often, however, “the particular case has become a real outlier, that the legal rules and doctrines have changed all around it, leaving it a kind of weirdness in the law.”

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And what what kind of a case might Justice Kagan be speaking about? Funny you should ask, because she has some thoughts about this Term’s case on political gerrymandering:

“There’s no part of me that’s ever going to become accepting of the decision made,” saying the majority was “abysmally wrong” in deciding that there’s no manageable standard to ferret out unconstitutional gerrymanders.

I don’t think she’s alone in her disappointment that the Supreme Court decided to give political gerrymandering a pass.

headshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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