Supreme Court must stay out of partisan politics to preserve its legitimacy, Kagan and Sotomayor say

  • Supreme Court Justices Sonia Sotomayor and Elena Kagan say the court's impartiality is crucial to its strength.
  • The highest court in the land must rise above partisanship in order to preserve its legitimacy, the justices say.
  • Their comments come after a bruising confirmation process for Supreme Court nominee Brett Kavanaugh, who has been accused of sexual misconduct. He denies the allegations.
U.S. Supreme Court Chief Justice John Roberts, with Justices, Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan listen as U.S. President Barack Obama delivers his State of the Union speech.
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U.S. Supreme Court Chief Justice John Roberts, with Justices, Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan listen as U.S. President Barack Obama delivers his State of the Union speech.

Supreme Court Justices Sonia Sotomayor and Elena Kagan said on Friday that the nation's highest court must protect its impartiality, or risk losing its legitimacy.

"We don't have an army. We don't have any money. The only way we get people to do what we say that they should do is because people respect us and respect our fairness," Kagan said at a conference at Princeton University on Friday.

Kagan and Sotomayor, who were both appointed by Barack Obama, emphasized the importance of keeping the Supreme Court out of partisan politics. However, neither mentioned President Donald Trump, or embattled Supreme Court nominee Brett Kavanaugh by name.

The justices comments came in the middue of a hyper-politicized Supreme Court nomination for Kavanaugh, who had been accused by multiple women of sexual misconduct. Kavanaugh has forcefully denied the allegations, and in an emotional hearing last week blasted the entire confirmation process.

People wait in line to attend the opening day of the new term of the Supreme Court in Washington, October 1, 2018. 
Aaron P. Bernstein | Reuters
People wait in line to attend the opening day of the new term of the Supreme Court in Washington, October 1, 2018. 

In the current divisive political environment, Kagan said the court needs to be seen as "above the fray" to preserve its legitimacy. Sotomayor agreed, adding that the politicization of legal ideology has hurt the court.

Both justices said the high court rules unanimously on far more cases than the public realizes. But for more contentious cases, however, Kagan acknowledged that the court tends to be divided in predictable ways.

She said, however, that in the past few decades, there's always been a swing vote like Justices Sandra Day O'Connor and Anthony Kennedy. Kagan argued that having a person whose vote was less predictable lent the court a sense of impartiality.

"It's not so clear going forward — that sort of middle position — it's not so clear whether we'll have that," Kagan said.

Kavanaugh, who is expected to be confirmed as early as Saturday, is seen as an ideological conservative who would push the court to the right on a range of issues.

Despite the justices' judicial philosophies, Kagan and Sotomayor described a culture of respect among members of Supreme Court, explaining that it is crucial to their work.

Kagan said the justices have a "vested interest" in maintaining good relationships with one another. Sotomayor added that it's easier to persuade someone when they don't feel persecuted for having a different perspective.

"I think if you can approach people in that way and understand that difference of opinion doesn't necessarily brand you as an evil person, there's more space to talk. There's more space to engage and certainly more space for willingness to compromise," Sotomayor said.