Kagan said at a conference for women at Princeton University that over the past three decades, starting with Justice Sandra Day O'Connor and continuing with Justice Anthony Kennedy, that there was a figure on the bench "who found the center or people couldn't predict in that sort of way."
“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," Kagan said.
Let's analyze Kagan's words for a moment.
By stating that she thinks a Justice in the "middle position" might not exist on a future Supreme Court, she - Kagan herself - has admitted that she is incapable of being a justice in a "middle position". This should, at the very least, disqualify her from service on the SCOTUS. She has admitted that she cannot be impartial. She has admitted that her bias will always color her decisions. She has admitted that we cannot trust her judgement.
This is dangerous for the SCOTUS and for the US.
The job of a Supreme Court Justice is not to decide a case based on an ideology of any kind. The job is to examine the brief presented by both sides and:
- To determine whether the case in question has a basis in law;
- To determine whether that law is in conformance with the Constitution - not some arbitrary definition of "Constitutional principles" determined by one's ideology, but the actual text of the Constitution; and
- To determine whether that law was correctly applied.
Here's why an adherence to the actual text of the Constitution is vitally important: if ideology is used to stretch "the meaning" of the Constitution to find new "rights", then the Constitution has been subordinated to that ideology -- and lower courts must now adhere to an ideology that is not defined in the law.
To put it simply: either the Constitution is the law... or it isn't.
This is not about Kavanaugh per se, but it is about whether Supreme Court precedent can be trusted to be Constitutionally valid. Bad decisions result when ideology is a primary guiding principle. And bad decisions are tearing this country apart.
A perfect example of the impropriety of ideology in SCOTUS decisions can be found in Justice O'Connor's comments on Roe. In 1983 and again in 1986, O'Connor criticized the Roe decision. In later years, when asked whether she would reaffirm Roe, she said she would. The Constitution did not change. The text remained exactly the same. Nothing in the text of the Constitution speaks on any medical procedures or the validity of taking an unborn's life without due process. The Constitution leaves those decisions to the States (the 10th Amendment). Yet Justice O'Connor's personal ideology changed, and thus her opinion on Roe changed as well.
The question of Roe as "bad law" has been discussed for decades, but it was the Roe decision that inflated passions on both sides of the debate. The reason? Ideology guided a decision, not the text of the Constitution. The Supreme Court should have decided that Roe was a state-level decision, and that it - the Supreme Court - does not exist to overturn 10th Amendment State-level decisions except when they violate the actual text of the Constitution.
Clearly, the actual text of the Constitution should be the guiding principle for cases that come to the Supreme Court. The Supreme Court should not be making new law in its decisions. It should not co-opt the job of the legislatures, whether State or Federal.
It is often said that "the laboratory of the States" shows the genius of The Founders: those who had despised the monarchical control over the Colonies and designed a Constitution to prevent those abuses. By designing independent States that operated under a common Federal code (the Constitution) that prevented those States from abusing each other's citizens, they designed a wondrous multi-layered system of government that encouraged freedom while simultaneously permitting State-level controls.
Our Republic requires that each State adhere to the Constitution, but that each State may decide - for itself and for its citizens - other laws and statutes that its citizens desire for themselves. And when a State implements a law that violates the actual text of the Constitution, the Supreme Court's job is to strike down that law (e.g. Brown and, more recently, Janus).
We do not need a Supreme Court made up of conservatives, liberals, men, women or "smart Latinas". We need a Supreme Court that examines each brief strictly according to the text of the Constitution, makes decisions solely based on the text of the Constitution, requires that States also adhere to the text of the Constitution, and will send a non-Constitutional case back to the State from where it originated.
One can only hope that a "conservative-leaning Supreme Court" will return to deciding cases on their merit according to the actual text of the Constitution, rather than becoming an engine that coerces all of the States to comply with a non-textual ideology.