“People don’t have to believe in the judiciary,” Justice Elena Kagan warned at an event styled as a conversation between her and Slate’s Dahlia Lithwick. “You can lose that belief,” the justice warned. And then she made what may be her most important point — that it is up to Supreme Court itself to prevent this outcome.
“I think that, on the Court, it’s incumbent upon us to be aware of that,” Kagan said. “And to not do the things that where people will reject the Court and say, you know, we don’t view it as legitimate anymore.”
Kagan made these remarks at an event hosted by Hannah Senesh Community Day School in Brooklyn (Lithwick has a child who attends Senesh). She did so, moreover, largely unprompted, although she went into more detail after she was pressed by Lithwick. The justice was also clear that the specific risk facing the judiciary is that people will lose faith in it because its members behave too much like partisans.
“This is, in some respects, a dangerous time for the Court,” according to Justice Kagan. “And it’s because, I think, people increasingly look at us and say ‘this is just an extension of the political process.'”
Kagan, of course, made these remarks at a time when the Court is divided between four Democrats and four Republicans, and the Senate is likely to confirm Judge Brett Kavanaugh, a hardline conservative, to fill its vacant seat.
The danger of this arrangement is that the Court’s decisions are likely to become predictable — and predictably Republican. Kagan pointed to Justices Sandra Day O’Connor and Anthony Kennedy, relatively moderate conservatives who, in recent decades held the balance of power between four liberals and four conservatives.
She also noted that both political parties have become much more sophisticated in identifying ideologically reliable Supreme Court nominees. “It used to be that, although you might be nominated by a Democratic president, you might swing conservative,” she noted, giving the late Justice Byron White as an example, “or although you could be nominated by a Republican president, you might swing more liberal,” giving retired Justices John Paul Stevens and David Souter as examples.
Justice Souter, and the fact that he voted as a moderate liberal after being appointed by Republican President George H.W. Bush, is now so reviled in many Republican circles that his name is used in a mantra — “No More Souters.”
“It is a dangerous thing,” said Kagan, if in the bulk of the most high-profile cases “it really does seem like the divisions follow ineluctably from political divisions. And one side is winning.”
Such a public and explicit warning that the Court may be an imminent threat to its own legitimacy is unusual from any justice, but it is especially alarming from Justice Kagan. As dean of Harvard Law School, Kagan earned praise from conservatives for brokering a compromise between liberal and conservative factions within her faculty that led to three prominent conservatives being hired. She is widely viewed as one of the Court’s deal-makers.
If the Court’s conservative bloc appears determined to, say, significantly expand police authority at the expense of suspects of color, Justice Sonia Sotomayor is likely to pen a blistering dissent laying out a bold new theory of criminal justice. Justice Kagan, by contrast, is more likely to offer to join the conservatives’ opinion if they agree to water it down.
Indeed, Kagan embraced this role during her conversation with Lithwick. The way to prevent the Court from turning into a partisan feeding frenzy, she said, is to take “big questions and make them small.”
Think of the Supreme Court’s decision last term in Masterpiece Cakeshop v. Colorado Civil Rights Commission, where the Court shrunk a massive showdown over whether religious conservatives have to obey anti-discrimination laws into a nothingburger case requiring state officials to be scrupulously polite to such conservatives when the officials enforce such laws.
Kagan, in other words, is the liberal wing of the Court’s consummate strategist. In her eight years on the bench, she’s shown little interest in laying out a grand, progressive vision of the Constitution, and far more interest in protecting what remains of our democracy from the wolves that seek to devour it. And she knows that her ability to do so depends on her ability to form alliances with colleagues who are constantly tempted to join those wolves.
At the end of the talk, she struck an optimistic note. “I’m a huge fan of the Chief Justice,” she said in response to an audience question about whether Chief Justice Roberts could occupy the moderating position that O’Connor and Kennedy did in the past. “I think he cares deeply about the institution and its legitimacy.”
The stakes in this battle are extraordinarily high — greater, even, than the soul of the Court itself.
Roberts didn’t simply write the Supreme Court’s opinion striking down much of the Voting Rights Act. As a young Justice Department attorney, he allied with a faction of conservative lawyers who unsuccessfully tried to get President Reagan to veto a bill that was necessary to preserve the rest of the act’s effectiveness. He’s since made statements suggesting that he believes the entire Voting Rights Act should be neutered.
Without an operational Voting Rights Act, which prevents racial voter discrimination, Jim Crow-like tactics — racial gerrymandering, voter suppression laws, shutting down polling places in black neighborhoods, and more — are likely to become commonplace in any state governed by Republicans. Eventually, Democrats will become incapable of winning national elections — although they will remain dominant in economic powerhouses like New York or California.
In such a nation, the Union itself would begin to fray.
Kagan, at the very least, understands that she is playing a very dangerous game. And she has a clear strategy to save the Court from itself. The question is whether Roberts will play along.