SCOTUS
Justice Elena Kagan Tells It Like It Is When It Comes To Stare Decisis And The Politicization Of The Supreme Court

She wants to be an optimist, but this Court might not let her.

By STACI ZARETSKY
October 24, 2022

(Photo by Brendan Smialowski/Getty Images)

Law should be stable. People depend on law; they order their lives, their conduct by it. You give people a right and then you take it away. They’ve understood their lives in a different way.

It’s a doctrine of stability and a doctrine of humility. The way the law develops best is slowly and incrementally by many judges over time. It’s kind of hubris to say we’re throwing that out because we think we know better.

[Stare decisis] prevents the court from becoming politicized. If we get judges who come onto a court and start throwing out the apparatus and rules, rather than law building in this incremental, minimalist way over time, there are all these jolts to the system. And it begins to look not like a court but more like a political institution.

— Justice Elena Kagan, in comments given during an appearance at the University of Pennsylvania, commenting on her role as a frequent “dissenter” on the Supreme Court and the meaning of stare decisis, while indirectly referring to the high court’s often divisive rulings last term. “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,” she said.


Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.