Supreme Court Justice Elena Kagan did not say who could become the new swing vote on the court. | Charles Rex Arbogast, File/AP Photo Supreme Court Kagan fears Supreme Court losing swing justice

With Washington still reeling from the most fractious Supreme Court confirmation battle in decades, Justice Elena Kagan warned Friday that the high court’s credibility is at risk because it now appears to lack a justice whose swing vote made the court seem more unpredictable and less partisan.

Speaking at a Princeton University conference for women, neither Kagan nor fellow Justice Sonia Sotomayor commented directly on the fight over President Donald Trump’s nominee, Brett Kavanaugh, or the sexual assault allegations that triggered protests and a re-opening of his confirmation hearings.


However, Kagan said the departure of the man Kavanaugh would replace — Justice Anthony Kennedy — leaves the court in danger of being perceived as a political institution rather than a neutral arbiter of disputes.

“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,” Kagan said. “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.”

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“All of us need to be aware of that — every single one of us — and to realize how precious the court’s legitimacy is,” Kagan declared, with her warning drawing protracted applause from the Princeton crowd. “It’s an incredibly important thing for the court to guard is this reputation of being impartial, being neutral and not being simply extension of a terribly polarizing process.”

Sotomayor said she “agreed wholly” with Kagan’s statement. Sotomayor said some of the perceived polarization of the court is related to the two major political parties aligning themselves for or against particular legal theories like originalism.

“When the political parties adopted that language as their own, they superimposed that on the court,” she said. “I think that that, institutionally, has hurt the court a lot and may continue to do so.”

Sotomayor said she tries to build bonds with other justices on the court, including some she rarely aligns with on cases, such as Justice Clarence Thomas.

“We have to rise above partisanship and personal relationships, that we have to treat each other with respect and dignity and with a sense of amicability that the rest of the world doesn’t ... share,” she said.

However, Sotomayor acknowledged that whether the court can manage to unify around its rulings is a “much more difficult question” than whether the justices are cordial with one another. She said narrow rulings can sometimes be a way for the court to avoid sharp divisions.

“To the extent we can avoid ruling in such expansive ways as to foreclose continued conversation, I think we have a chance of holding onto our legitimacy,” she said.

Sotomayor said she works closely with Justice Neil Gorsuch, the conservative Trump nominee who joined the court last year, on promoting civics education. However, legal experts say neither Gorsuch nor Kavanaugh — who’s widely expected to be confirmed as soon as Saturday — is likely to be a regular swing vote on the high court.

In the coming years, the court is likely to have a solid conservative majority, although some see Chief Justice John Roberts as a moderating force who could serve as a swing justice in some cases. Still, those instances are likely to be far rarer than when Kennedy held that power.

Neither Sotomayor nor Kagan said explicitly who might fill Kennedy’s shoes, but Kagan said Roberts is devoted to promoting harmony among the justices.

“The chief justice is very good about setting the tone for the whole institution,” she said.