The headlines read: Kagan warns that Supreme Court may not have a swing vote anymore
Associate Supreme Court Justice Elena Kagan said Friday she fears the high court may lack a justice going forward who would serve as a swing-vote on cases, speaking hours after President Trump’s second nominee Brett Kavanaugh secured enough votes to be confirmed.
“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.
With all due respect, Justice Kagan, there’s absolutely zero inherent purpose laid forth in our United States Constitution for a “swing vote.” It’s a misnomer, simply a thing that sometimes happens, and most certainly not any sort of thing to strive for or achieve. In fast, such thinking is rather toxic to a healthy judicial process.
1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour… – Article III, Section I
2. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. – Article III, Section 2
Your oath of office is two-fold,
5 U. S. C. § 3331: “I, _________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
Revised Judicial Oath (28 U. S. C. § 453): “I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States. So help me God.”
The idea of a “swing vote” originated not from any basis in law, but rather, merely out of happenstance, whereby on some issues the Supreme Court is otherwise split.
Quite frankly, when a Supreme Court is often split, that’s a very BAD sign. It means Justices are voting along party lines and NOT in accordance with the U.S. Constitution and their oaths of office like they’re SUPPOSED to.
A healthy Supreme Court will general find most justices voting one way whereas you sometimes have stragglers voting in opposition or with Constitutionally informed dissent. Convoluted dissent, as has been quite comment with Democrat Justices, is not healthy, as the Constitution is not convoluted. It takes a great deal of convoluted thinking and wording to make it appear as if B is the better course of action when the Constitution clearly says, “do A.”
Once he gets his feet wet, Justice Kavanaugh should help keep you on the straight and narrow path of our Constitution which you swore to uphold.
Justice Kagan, you also stated the following
“All of us need to be aware of that – every single one of us – and to realize how precious the court’s legitimacy is,” she added. “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.”
Always or even often requiring a swing vote seriously, if not severely undermines the court’s legitimacy, grossly tarnishing it’s reputation of being impartial and neutral, because it clearly communicates the court is not judging an issue on its own merits, but rather, is merely judging an issue along party lines.
Again, healthy courts are NOT “evenly balanced.” They are firm, with conviction, and Constitutionally sound. Just as constantly unanimous votes are unhealthy, so to are constantly split votes. In a nine-member court, decisions with 6, 7, and 8-member majorities tell me most justices, regardless of party, are doing their job. Your job, Justice Kagan, isn’t to find some “center” or any sort of “middle ground.” This isn’t kindergarten. Your job is arriving at the objective, non-partisan and Constitutional truth of a matter.
Good luck, and may God be with you.
In closing, please use this graphic to ascertain when the court has been most healthy, and when it has been saddled by partisanship: