"I think judges create legitimacy problems for themselves — undermine their legitimacy — when they don't act so much like courts and when they don't do things that are recognizably law."

"And when they instead stray into places where it looks like they are an extension of the political process or where they are imposing their own personal preferences."

Said Justice Kagan, quoted in "Kagan calls leak of draft opinion overturning Roe 'horrible' and expects investigation update by month's end" (CNN).

It's traditional to critique judges for deciding cases according to their political preferences instead of strictly saying what the law is.

And it's traditional to emphasize the way it looks to people and the attendant threat to the Court's power: If we don't look as though we're doing what we're supposed to do — or what people have long believed we are supposed to do — then we'll lose "legitimacy." 

But how do people know whether judges are doing it right? They can't — and won't — read the Court's lengthy written justifications for the momentous decisions they impose on the people. Who can they trust? No one! Not even themselves. 

So judges had better be careful to look as though they doing it the "legitimate" way and not just following their own personal and political preferences. 

Kagan's point — courts need to look legitimate — stands in contrast to Chief Justice Roberts's recent comments about legitimacy: "[S]imply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court." And: "You don't want public opinion to be the guide of what the appropriate decision is."

Kagan concentrates on whether the judges are deciding cases properly, and Roberts concentrates on whether people are properly assessing whether judges are deciding cases properly.

I suspect that if confronted, both Kagan and Roberts would agree that judges should decide cases properly and that people should criticize decisions based on whether judges decided them properly.

But that's agreement at a high level of abstraction. And I doubt if anyone really believes judges can drive all personal preference out of their decisions. But if they could, I'll bet people wouldn't like that either.