The Slatest

Justice Kagan Fears Supreme Court Could Lose Legitimacy Without a Swing Justice

Sonia Sotomayor and Elena Kagan, associate justices of the Supreme Court, speak during Princeton University's "She Roars: Celebrating Women at Princeton" conference in Princeton, New Jersey on October 5, 2018.
Sonia Sotomayor and Elena Kagan, associate justices of the Supreme Court, speak during Princeton University’s “She Roars: Celebrating Women at Princeton” conference in Princeton, New Jersey on October 5, 2018.
REUTERS/Dominick Reuter

Supreme Court Justice Elena Kagan expressed concern that the Supreme Court will no longer have a justice who will be seen as the unpredictable swing vote on important cases and that could hurt how the public sees the court. Speaking at a Princeton University conference, Kagan and Justice Sonia Sotomayor both avoided directly commenting on the confirmation fight over Brett Kavanaugh. But Kagan did talk about the justice Kavanaugh would replace, saying that the departure of Justice Anthony Kennedy leaves the nation’s highest court without a figure who has been key to the workings of the institution over the past decades.

“It’s been an extremely important thing for the court that in the last 40 years, starting with Justice [Sandra Day] O’Connor and continuing with Justice Kennedy, there has been a person who found the center, where people couldn’t predict in that sort of way,” Kagan said.
“That’s enabled the court to look so it was not all by one side or another and it was indeed impartial and neutral and fair.”

Kagan added that “going forward” it isn’t clear whether “that sort of middle position—it’s not so clear whether we’ll have it.” Kagan went on to note that the lack of that “middle position” is something everyone needs to be aware of, particularly to “realize how precious the court’s legitimacy is.” Kagan went on to suggest that if the court will only be seen as a partisan actor then it will lose an important role it plays in society at large. “It’s an incredibly important thing for the court to guard is this reputation of being impartial, being neutral and not being simply extension of a terribly polarizing process,” Kagan said. “This is a really divided time, and part of the court’s strength and part of the court’s legitimacy depends on people not seeing the court in the way that people see the rest of the governing structures of this country.”

Sotomayor said she “agreed wholly” with her fellow justice and made a clear effort to distance herself from the partisan fight over Kavanaugh’s nomination. “We have to rise above partisanship in our personal relationships,” Sotomayor said. “We have to treat each other with respect and dignity and with a sense of amicability that the rest of the world doesn’t often share.”