Justice Elena Kagan had a curious comment on Friday when she publicly lamented the loss of a swing justice on the Court in the departure of Justice Anthony Kennedy. Kagan said that the loss of a middle would make the Court look too predictable and partisan. What is strange is that Kagan is not lamenting her own consistent vote on the left and unwillingness to take a more centrist position.
Kagan was speaking at a Princeton University conference for women and observed:
“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. 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. And it’s not so clear that I think going forward that sort of middle position — it’s not so clear whether we’ll have it.”
If Kagan believes that it is a good thing for the Court to be more centrist, one would expect her to move more to the center on issues. Instead she seems to want to continue to vote in a left block but have another justice keep the Court in the center.
Notably, Sotomayor said she “agreed wholly” with Kagan’s statement and also wanted someone to blunt the voting on the right and her own voting on the left.