Conservatives Could Undo More Than Just Abortion Rights, Elena Kagan Warns

Justice Elena Kagan thinks the Supreme Court’s conservative majority may not stop at abortion rights, she told a crowd at the New York University School of Law on Monday, warning that the logic used to overturn Roe v. Wade could be broadly applied elsewhere.

“I don’t think you’re overreading the bigger question,” Kagan said in a conversation with Melissa Murray, a law professor and podcast host who’d asked about the implications of Roe’s reversal, according to The New York Times.

With its landmark 2022 decision in Dobbs v. Jackson Women’s Health Organization, the high court dismantled the right to abortion based on the argument that it is not “deeply rooted in this Nation’s history and tradition,” as Justice Samuel Alito wrote at the time.

“That’s the entirety of the majority’s reasoning,” Kagan said.

If you extend that argument elsewhere, said Kagan, it’s possible to strike down what would otherwise be firm constitutional protections.

“Then you say the same thing for contraception,” she warned. “Then you can say the same thing for interracial marriage. Then you could say the same thing for gay marriage.”

Kagan also addressed the ongoing ethics scandal that’s embroiled the court, with bombshell stories about Alito and Clarence Thomas, another conservative justice, accepting lavish gifts from Republican billionaires like Paul Singer, who’s repeatedly had business before the court.

Kagan has been a leading voice for an enforceable code of ethics at the Supreme Court, despite pushback from the right.

“It seems like a good idea in terms of ensuring that we comply with our own code of conduct going forward in the future,” she said at the NYU School of Law. “It seems like a good idea in terms of ensuring that people have confidence that we’re doing exactly that. So it seems like a salutary thing for the court.”

Last week, ProPublica reported that Thomas’ wife has privately lauded efforts to oppose court reform, with Ginni Thomas praising a group run by conservative activist Kelly Shackelford, who called Kagan’s ethics push “treasonous” and “disloyal.”

Kagan on Monday declined to address Shackelford’s “treasonous” comment, telling the NYU School of Law crowd that she didn’t “want to dignify it any further.”