Kagan Says Supreme Court Rulings Damaged Democracy

Justice Kagan said the Supreme Court's conservative majority undermined democracy via rulings on gerrymandering, campaign finance and voting rights.

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Kagan Says Supreme Court Rulings Damaged Democracy

By @sharedot · · 8 pages

  • Politics
  • Supreme Court
  • Elena Kagan
  • Elections

Justice Kagan said the Supreme Court's conservative majority undermined democracy via rulings on gerrymandering, campaign finance and voting rights.

What Kagan Said, and Where

Speaking at Catholic University's law school in Washington, D.C., in a conversation with professor J. Joel Alicea, a former clerk to Justice Samuel Alito, Kagan said the court 'has kind of blinded itself to the very deleterious effect of their rulings on how the political system works.'

The liberal justice, appointed by President Barack Obama in 2010, dissented from each of the rulings she criticized, including a 2019 decision holding that federal courts cannot intervene against extreme partisan gerrymandering.

The remarks came exactly two weeks before the pivotal November 3 midterm elections for control of Congress.

A 'Race to the Bottom' on Gerrymandering

Kagan reserved some of her sharpest language for the 2019 ruling removing federal courts from oversight of partisan map-drawing, which she said laid the groundwork for this year's unprecedented wave of mid-decade redistricting.

'Both political parties have been engaged in a race to the bottom in terms of doing these partisan gerrymanders,' she said, a process she argued deprives citizens of voting equality and pushes politics 'away from the center towards the wings, towards the extremes.'

She said states have redrawn maps in ways that effectively eliminate competitive districts, making an already polarized country 'even more so.'

Campaign Finance and the Voting Rights Act

On money in politics, Kagan said the court's decisions striking down campaign finance restrictions had opened the door to corruption and unlimited election spending.

'The people of America look around this political system and think that all this money chasing all these political candidates is a nightmare,' she said. 'And they're right.'

She also blamed the court's April 29 Voting Rights Act decision, which limited the use of the 1965 law to justify majority-Black or majority-Hispanic districts.

According to Bloomberg Law, she said that within weeks, a large number of Southern states moved to redistrict in order to eliminate Black districts.

Defending the Court From a 'Rubber Stamp' Label

Despite her critique, Kagan pushed back on claims that the 6-3 conservative majority is a rubber stamp for President Trump.

According to NBC News, she cited rulings in which the president lost, including the decision that his global tariffs were illegal and the court's block on his bid to end birthright citizenship.

She described the court as 'deeply conservative' but said it has in certain cases 'definitely pushed back on the president.' She also criticized originalism as 'kind of misconceived, and not a very good match with the Constitution we have.'

A Rare Public Break With Colleagues

It is uncommon for a sitting justice to so sharply criticize the institution she serves, and the timing — with control of Congress at stake on November 3 — gave the remarks outsized weight.

The court's majority has defended its positions: in 2019 it reasoned that partisan gerrymandering is a political dispute beyond judicial reach, and conservatives have held that key campaign finance rules violate free speech.

Kagan's language was unusually personal, accusing colleagues of lacking 'the appropriate concern or understanding of the consequences of their decisions.'

What Comes Next for the Court

The court's election-law docket keeps growing. On November 3, the same day as the midterms, the Supreme Court will hear argument in St. Mary Catholic Parish v.

Roy, a free-exercise challenge to Colorado's universal preschool nondiscrimination requirement that could lead the majority to overrule or narrow Employment Division v. Smith, the 1990 precedent governing religious exemptions from neutral laws.

SCOTUSblog's Erwin Chemerinsky notes the case could dramatically reshape the law on religious liberty and discrimination. Whether Kagan's warning moves voters, or hardens the court's contested standing, will be measured at the ballot box.

Sources

  1. news.bloomberglaw.com › Supreme Court's Kagan Says Election Rulings Creating 'Nightmare'
  2. nbcnews.com › Justice Elena Kagan accuses Supreme Court's conservative majority of undermining democracy
  3. bozemandailychronicle.com › Justice Kagan warns Supreme Court rulings are fueling polarization and undermining democracy
  4. scotusblog.com › The Supreme Court's next major case on the free exercise of religion

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