Alito: Questioning Supreme Court legitimacy ‘crosses an important line’

Supreme Court Justice Samuel Alito, who wrote the decision earlier this year overturning Roe v. Wade, told The Wall Street Journal that implying the court is illegitimate “crosses an important line.”

Alito offered the remark in response to an inquiry from the Journal about whether the court’s justices were concerned the public was losing faith in the Supreme Court after a series of controversial decisions that have roiled public debate.

“It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit,” said Alito, one of six conservatives on the court. “But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.”

The decision overturning Roe v. Wade, Dobbs v. Jackson Women’s Health Organization, was perhaps the most dramatic court ruling in decades and has become a major flash point in the midterm elections.

It also appears to be contributing to changing views on the court.

Polling in late July showed just 38 percent of Americans approve of the high court, down 22 points from last September.

While overturning precedents is not uncommon, the ruling marked the first time the court has overturned what was previously an enshrined constitutional right based on other court rulings.

The court, with a 6-3 conservative majority, also delivered conservative rulings on the environment, gun control and religious freedom last term.

Liberal Justice Elena Kagan has made public appearances raising concern that the court’s conservative majority has diminished the credibility of the court.

Speaking at a forum with Northwestern University’s Pritzker School of Law in Illinois this month, Kagan said a court is only legitimate when it’s “acting like a court.” 

“Why is it that people abide by its judgments? It’s not because they agree with everything the court does,” Kagan said. “Presumably, it’s because they have some understanding that, even if they don’t agree, that the court is doing its job, that the court is performing this critical function in a rule-of-law society, in a constitutional democracy.”

Chief Justice John Roberts disagreed with Kagan at a judicial conference in Colorado Springs, Colo., also this month.

“Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court,” he said, according to The Wall Street Journal. That “doesn’t change simply because people disagree with this opinion or that opinion or disagree with the particular mode of jurisprudence.”

Partisan lines color views of the court. An August poll showed just 13 percent of Democrats approve of the Supreme Court, compared to 74 percent of Republicans.

Significantly, GOP approval climbed from 45 percent in September 2021 while Democratic approval dropped from 36 percent in the same time period.

In a recent appearance at Salve Regina University in Rhode Island, Kagan again pushed forward her concerns about the court’s legitimacy.

“The court shouldn’t be wandering around just inserting itself into every hot-button issue in America,” the justice said. “It especially shouldn’t be doing that in a way that reflects one ideology or one set of political views over another.”

Her comment drew a round of applause at the forum.