With the possibility (if not probability) that Brett Kavanaugh may soon be donning the robes of an Associate Justice of the Supreme Court, the partisan balance of the Supremes is likely going to shift. But are we assuming too much when we make blanket statements about there being a partisan balance? I’ll plead guilty to doing so, though I can remember a time not too many decades ago when I kept myself under the pleasant delusion that the judicial branch existed outside the world of politics.
That’s the subject that Kavanaugh’s future (probably) colleague, Associate Justice Elena Kagan tackled during a recent appearance. Speaking with a reporter from Slate at a day school in Brooklyn, Kagan bemoaned the idea that people could begin to lose faith in the judicial branch if they become convinced that it’s just another political body fighting the same partisan battles that politicians in the legislative and executive branches are consumed with.
“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.”…
“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 later swings back to frame her warning of the implosion of faith in our system of government in more direct terms.
“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.”
It’s at moments like this when I wonder if the Supreme Court isn’t really the ultimate ivory tower rather than some of the halls of our nation’s universities. Do all the justices on the court put on their robes each day thinking that they are immune to political bias in their decisions or that a sizable chunk of the country believes that? Because that would be rather stunning.
It’s true that not every case winds up splitting down those lines. In some instances where a case speaks directly to some powers which are described in at least mostly plain text in the Consitution, you can often get either a unanimous vote or at least a significant majority. I just did a quick check of the 75 cases the court ruled on in the last term from November 2017 until June of this year and in 36 of those cases the court was either unanimous or had only a single dissenting vote. But those are the “easy” cases. (Please note the immense scare quotes on easy.) Very often, the court is called on to decide matters which are not clearly defined or even mentioned in the Constitution, and the high-profile ones tend to deal with hotly contested social issues.
In those cases, the court generally splits and does so predictably. There are exceptions, of course, such as in Masterpiece Cakeshop, where Breyer was joined by Kagan herself in joining the conservatives in the majority decision. But even then, it was only because they whittled the case down from the overarching question of religious freedom to a mealymouthed jump ball where the lower courts would need to examine every instance on its merits. For the most part, the only way the court avoids a partisan label is by either doing that or simply refusing to hear controversial cases, as they’ve so often done on Second Amendment issues.
Kagan tries to paint this partisan predictability as a recent phenomenon, pointing to some GOP appointed judges who wound up being liberals, most notably, Souter. But that’s no defense at all. That doesn’t mean the court wasn’t just as partisan. It simply means that George H.W. Bush made a bad pick. When it comes to the stormy, difficult cases where a line in the sand must be drawn (assuming you can get the court to draw one), Kagan is as reliable of a liberal vote as Alito is a conservative one. I don’t think it undermines the legitimacy of the court because most people who pay any attention at all to such things are already well aware of how the appointment process works. I wish it was different, but judges are human beings too. I’m simply disappointed that Kagan would take to the stage and make such an obviously absurd claim.