Justice Kagan is Concerned About the Supreme Court’s ‘Legitimacy’ if Kavanaugh is Confirmed

During a talk at Princeton University on Friday, Supreme Court Justice Elena Kagan expressed deep concern over the legitimacy of the Court after Justice Anthony Kennedy retired. Kagan is concerned that the “middle position” — also known as the unpredictable vote – is now gone and Kennedy could be replaced with someone (Judge Brett Kavanaugh) whose views fall more on the conservative spectrum.

Kagan explained that Kennedy and Sandra Day O’Connor did something important for the Court: they made it look “impartial and neutral and fair.”

“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 other governing structures of this country now,” Kagan explained. “In other words, people thinking of the Court as not politically divided in the same ways. It’s not an extension of politics, but instead somehow above the fray.”

Kagan believes it’s important for the Court to uphold that integrity, especially because we live in a deeply divided political climate.

Although Kagan attempted to explain the importance of Kennedy’s seat on the Court, she actually did herself a disservice. She admitted a few things:

1) While, in theory, the Supreme Court is an “impartial” group of people deciding and interpreting law that will impact us for generations to come, it’s not. For the most part, we know how justices are going to side. Justices Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg are pretty much always going to fall on the liberal side of the position. Justices Samuel Alito, Neil Gorsuch and Clarence Thomas are pretty much always going to fall on the conservative side of the issue. That leaves Justices Anthony Kennedy falling to the left-of-center and John Roberts falling to the right-of-center. That’s not being impartial in the least bit. If it was, Kennedy’s retirement wouldn’t be such a huge deal. You know why? Because there would be eight other justices with just as much impartiality as him.

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