Kagan Says Loss of Centrist Could Harm Perception of Supreme Court
(Bloomberg) -- U.S. Supreme Court Justice Elena Kagan said the court could find itself without a swing vote in the coming years and risk losing legitimacy in the eyes of the public.
Speaking just hours after the U.S. Senate cleared the way for Brett Kavanaugh to be confirmed as the newest justice after a bitter partisan fight, Kagan said Friday the court benefited from having Justices Sandra Day O’Connor and Anthony Kennedy serving as centrists over the past 30-plus years.
The presence of O’Connor and Kennedy "enabled the court to look as though it was not owned by one side or another and was indeed impartial and neutral and fair," Kagan said to an audience at Princeton University. "And it’s not so clear that, you know, I think going forward that sort of middle position -- you know, it’s not so clear whether we’ll have it."
She added: "All of us need to be aware of that, every single one of us and to realize how precious the court’s legitimacy is."
Kavanaugh’s arrival to succeed the now-retired Kennedy will give the court a solid five-justice conservative bloc, with Chief Justice John Roberts likely determining how quickly the court will move.
Kagan appeared alongside fellow Justice Sonia Sotomayor. Both are Princeton graduates. Without mentioning Kavanaugh by name or referring to the confirmation fight, the two justices sought to distance themselves from the political rancor that has enveloped Washington over his 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."
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."
Kagan said the court needs to protect its institutional reputation by staying "somehow above the fray, even if not always and in every case. It’s an incredibly important thing for the court to guard."
She said the justices can’t afford to hold grudges because they would lose the ability to persuade their colleagues in future cases.
"We live in this world where it’s just the nine of us," Kagan said. "We are the consummate repeat players."
©2018 Bloomberg L.P.