Supreme Court Justice Elena Kagan criticized originalism, a legal theory embraced by the High Court’s conservative justices, as “misconceived” and “not a very good match” during remarks to law students.
Kagan’s comments mark the latest public disagreement among Supreme Court justices as trust in the institution has fallen. Only 34 percent of Americans approve of the Court, according to a recent Gallup poll from September 2026. That is near a historic low of 33 percent recorded just months earlier in July 2026.
She made the remarks during a conversation criticizing the conservative legal theory at Catholic University’s law school on Tuesday. They were first reported by The New York Times.
“They were writing the Constitution for the ages. They were writing the Constitution, knowing that there would be change in the world,” she said, according to the report.
She also criticized the Court’s recent rulings, saying the bench has “blinded itself to the very deleterious effects of their rulings on how the political system works” and created “a democracy that does not work as well as it should,” the Times reported.
The Supreme Court began its 2026-2027 term this month. The justices are going to be hearing several important cases over their current term.
Newsweek reached out to the Supreme Court’s public information office for comment via email.
What Is Originalism?
The National Constitution Center defines originalism as the belief that “constitutional text ought to be given the original public meaning that it would have had at the time that it became law.”
Daniel Urman, a law professor at Northeastern University, told Newsweek that originalism suggests that “constitutional meaning is fixed at the time the framers ratified or amended the Constitution.”
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“For example, the Bill of Rights means what it meant in 1791, and judges are bound by this meaning, hundreds of years later,” he said. “According to originalists, the proper way to change constitutional meaning is through the Constitution’s Article V amendment process. They suggest it is illegitimate for judges and justices to impose their own policy preferences in the law.”
Originalism, he said, is “easy to understand, and is rhetorically appealing.” It used to be seen as a “fringe theory in law schools,” but has become more mainstream.
It has become the “dominant mode of constitutional interpretation at the Supreme Court in recent years,” according to Urman.
Originalism has “recently become influential across the ideological spectrum," Paul Collins, professor of legal studies and political science at the University of Massachusetts Amherst, told Newsweek.
“For instance, there are liberal approaches to originalism that focus on principles of equality and freedom present in founding documents like the Declaration of Independence and constitution,” he said.
The approach “means that the meaning of the constitution is fixed in time,” he said.
Where Conservative Supreme Court Justices Stand on Originalism
Urman said that all six of the conservative justices have “embraced originalism to a certain extent, with Chief Justice Roberts being the least likely to employ it.”
“The other Justices have slightly different versions of originalism, but all of them seek to determine original meaning of constitutional terms,” he said. “Justice [Clarence] Thomas, for example, does not really care about precedent. He thinks that Justices should strive for accuracy and overturn non originalism precedents, even old ones.”
Collins said Justices Clarence Thomas and Samuel Alito are “most closely associated with the approach, but even they differ in how to best implement originalism.”
During a 2020 Federalist Society discussion, Thomas compared originalism to a driver stopping when they see a stop sign.
“I truly think regular people are that way. That words have to mean things. That language has to communicate something,” he said.
He said other approaches that use “fancy footwork” and “double entendres” only “disenfranchise” ordinary people, and that the Court is obligated to “make sense of it and to be plain spoken.”
Justice Samuel Alito wrote in an excerpt of his book So Ordered: An Originalist’s View of the Constitution, the Court and Our Country that was published in The Wall Street Journal earlier this month that he would describe himself as a “working judicial originalist,” someone who “strives to achieve originalist aims within the framework of our judicial system.”
“Originalism disciplines the decision-making process, but it doesn’t eliminate the need for judges to exercise judgment. Originalist judging requires a degree of humility, but it also demands boldness to go where the original public meaning leads, and self-confidence in the face of a hostile media and legal academy,” he wrote in the piece.
Is Kagan’s Public Rebuke of Originalism Rare?
This sort of public rebuke is “not too unusual,” Urman said.
“Some Justices let their opinions speak for themselves, but others make speeches with criticisms of constitutional approaches,” he said.
Collins, however, said he views the comments as unusual and that he would more often see them in judicial opinions. He said he welcomes those comments.
“Although first words of the Constitution are ‘We the People,’ we often forget that the Constitution belongs to all of the American people, not just to judges. I understand Justice Kagan’s comments as an invitation to have more public discussions about how best to interpret our founding document, including the flaws found in originalist approaches,” Collins said.
Other instances of division among the justices have drawn public attention.
In June, the Supreme Court issued a rare public statement after a dispute between Justices Sonia Sotomayor and Samuel Alito. Sotomayor read her dissent condemning the conservative majority's ruling in the case Mullin v. Al Otro Lado.
She described that ruling as one that “regrettably and tragically extinguishes the light of the torch of the Statue of Liberty.” Alito appeared surprised by her decision to read the dissent and defended his position. The Supreme Court later released a statement addressing the “misunderstanding on Alito’s part,” saying her chamber notified him of her plans to read the dissent.
In April, Sotomayor apologized to conservative Justice Brett Kavanaugh for a comment that appeared to criticize him “for failing to grasp the real-world effects of an unsigned order last year that allowed immigration enforcement sweeps in Los Angeles to resume.”
Justice Ketanji Brown Jackson has also publicly criticized the Court’s conservatives, calling recent rulings “scratch‑paper musings” that risk seeming detached from real‑world consequences earlier this year.
Newsweek’s reporters and editors used Martyn, our AI assistant, to produce this story. Learn more about Martyn here. Contact Newsweek editors on this story: Jason Lemon and Gray R. Thomas