Justice Elena Kagan warns that Supreme Court losing public confidence is ‘dangerous’

‘If over time the court loses all connection with the public and with public sentiment, that’s a dangerous thing for a democracy’

Justice Elena Kagan has warned a loss of confidence in the Supreme Court would be a “dangerous thing” for democracy.

In her first public comments since the court’s conservative supermajority voted to overturn Roe v Wade last month, the liberal justice said straying from public opinion and longstanding precedent risked the court’s legitimacy, the Washington Post reported.

“I’m not talking about any particular decision or even any particular series of decisions, but if over time the court loses all connection with the public and with public sentiment, that’s a dangerous thing for a democracy,” Justice Kagan said to an audience of 500 judges and attorneys at a judicial conference in Montana on Thursday.

“Overall, the way the court retains its legitimacy and fosters public confidence is by acting like a court, is by doing the kinds of things that do not seem to people political or partisan,” she added.

Justice Kagan, who has served on the court since 2010, was one of three dissenting votes on last month’s decision to end constitutional rights to reproductive health rights.

Elena Kagan during her confirmation hearing in 2010 (JIM LO SCALZO/EPA)

Alongside the overturning of Roe, the Supreme Court has recently issued controversial decisions to expand gun ownership rights, and limit the power of the Environmental Protection Agency to curb greenhouse gas emissions.

Conservative justices, emboldened by their 6-3 supermajority, have also signalled that they could overturn same-sex marriage and access to contraceptives.

Justice Kagan said the the court “earns its legitimacy by what it does, by the way it behaves.”

She called on the justices to guard against enacting their own “policy or political or social preferences”, adding there had been times when “judges have been unconstrained and undisciplined” on both sides of the political spectrum.

A Gallup poll found confidence in the Supreme Court had plummeted to 25 per cent last month, its lowest in 50 years.