Kagan Sees Threats to Everyday Rights Beyond Abortion

Justice Elena Kagan said on Monday that Americans were right to worry about the future of rights that form the fabric of their everyday lives — such as access to contraception and interracial and gay marriage — since the Supreme Court eliminated the constitutional right to abortion.

Justice Kagan said that in Dobbs v. Jackson Women’s Health Organization, her colleagues had overturned the right to abortion with a historical argument that American women had not been free to have the procedure earlier in the nation’s history.

“That’s the entirety of the majority’s reasoning,” she said during a talk at New York University School of Law. “Then you say the same thing for contraception. Then you can say the same thing for interracial marriage. Then you could say the same thing for gay marriage.”

“I don’t think you’re overreading the bigger question,” she told Melissa Murray, a law professor who interviewed Justice Kagan and asked how far the logic of the Dobbs decision could go.

During the hourlong exchange, on Justice Kagan’s home turf of New York City, she described the importance of storytelling as a legal tool, trying to limit emergency cases and the gender dynamics on a court that now has four female members. (She said it made little substantive difference in the law, but was a powerful public statement about female authority.)

But her most emphatic remarks were about the legacy of Dobbs, as well as the court’s long-running ethics controversies and efforts to address them.

Two years into a series of revelations about unreported free trips, a secret influence campaign, provocative flags and the role of a justice’s wife in trying to overturn the 2020 presidential election, and amid languishing public confidence in the court, Justice Kagan has emerged as an advocate of stronger ethics protections.

Last fall, the justices agreed to their first ethics code. Since then, Justice Kagan and Justice Ketanji Brown Jackson have said publicly that they would like to add an enforcement mechanism, perhaps in the form of a group of trusted federal judges who could weigh in on the justices’ behavior.

Last week, ProPublica reported that Kelly Shackelford, a prominent conservative activist, called Justice Kagan “somewhat treasonous” for helping to drive those efforts.

“That is incredible, somewhat treasonous, what Kagan did,” Mr. Shackelford said. “The chief justice rules the court. They’re trying to keep the other branches’ hands off of them. And then you’ve got Kagan from the inside really being somewhat disloyal and somewhat treasonous in what she’s doing.”

When Ms. Murray asked about Mr. Shackelford’s comments, Justice Kagan used the question as an opening to walk the audience through her point of view on ethics reform and to respond to recent public commentary. The code that the court adopted last fall represented progress, Justice Kagan said, but she added that she agreed with critics who called it insufficient to protect the court and its reputation.

“Most rules have enforcement schemes attached to them,” she said. “They have enforcement schemes so that you can make sure that people are complying with the rules, and so that the public has confidence that people are complying with the rules.”

She argued that lower-court judges could be effective arbiters of the justices’ behavior even though the supervision usually worked in the other direction, with the Supreme Court reviewing decisions by the lower-court judges.

“These would be very experienced, respected judges on the bench who would be assigned the task of dealing with complaints about our behavior,” she said.

Justice Kagan, who has spent much of her career in public service, said she did not want to respond directly to the “somewhat treasonous” remark. “I don’t want to dignify it any further,” she said.

But the justice, known for her precision with language, could not resist a tiny jab back. “It’s like ‘somewhat pregnant’ or something,” she joked, to laughter across the room.