Kagan says Supreme Court has 'blinded itself' to damage its rulings do to democracy

On Tuesday, Justice Elena Kagan addressed students and faculty at Catholic University's law school in Washington, D.C., offering one of the most pointed internal critiques of the Supreme Court's conservative majority yet heard from a sitting justice — charging that her colleagues have refused to grapple with how their decisions on voting, redistricting, and campaign finance play out in practice.

The court has kind of blinded itself to the very deleterious effects of their rulings on how the political system works and has created a democracy that does not work as well as it should.— Elena Kagan, Associate Justice, U.S. Supreme Court

The remarks, delivered two weeks before the midterm elections, targeted three interlocking areas where the court's 6-3 conservative majority has moved in recent years: partisan gerrymandering, Voting Rights Act protections, and campaign finance restrictions. Kagan dissented in each of the decisions she criticized.

Her sharpest language was reserved for the court's 2019 ruling that federal courts cannot intervene to limit extreme partisan gerrymandering. That decision, she said, has set off a race between both parties to draw the most lopsided maps possible — eliminating competitive districts and pushing candidates away from the political center.

Over the last couple of years especially, both political parties have been engaged in a race to the bottom in terms of doing these partisan gerrymanders, … making what I think is unfortunately a too polarized country even more so.— Elena Kagan, Associate Justice, U.S. Supreme Court

The practical effect, Kagan argued, is that candidates no longer need to appeal to a broad electorate — only to primary voters at the ideological edges of their party. She characterized the dynamic as pushing people away from the center, towards the wings, toward the extremes, because winning the primary is all that candidates must worry about.

She also criticized a series of rulings narrowing the 1965 Voting Rights Act, including a recent 6-3 decision that struck down Louisiana's congressional map. In her dissent, she called it the latest chapter in the majority's now-completed demolition of the Voting Rights Act.

On campaign finance, Kagan pointed to a June decision — also 6-3 — that struck down restrictions on how much political parties may spend on candidates. The court's conservative majority has consistently held that such restrictions violate the freedom of speech.

The people of America look around this political system and think that all this money chasing all these political candidates is a nightmare, and they're right.— Elena Kagan, Associate Justice, U.S. Supreme Court

Kagan also described voting rights as 'foundational,' arguing that a well-functioning political system is the prerequisite for a wide range of good outcomes — and that the court's decisions have eroded that foundation.

She did not, however, portray the court as a simple instrument of any one political figure. She acknowledged that the conservative majority had definitely pushed back on President Donald Trump in several cases, including rulings on tariffs, birthright citizenship, and mail ballots. In her telling, the court is deeply conservative — but it does not simply ratify whatever the executive branch seeks.

During the question-and-answer session, Kagan also voiced concern about a ruling this year that expanded Trump's authority over independent federal agencies, cautioning against the danger of one president being able to ride roughshod over all the other institutions of government and over the people.

She further took aim at originalism, the conservative legal philosophy, dismissing it as misconceived and not a very good match with the Constitution we have.

Zack Smith of the Heritage Foundation, identified as a Senior Legal Fellow of Courts and the Constitution, offered a rebuttal to Kagan's remarks. Smith said: The job of the Court is not to play politics with its decisions. Instead, its job is to faithfully apply the Constitution and other laws as they are written. Justice Kagan has disagreed with the majority of her colleagues in some of those decisions, but that doesn't mean they are illegitimate or even wrongly decided.

The midterm elections, now two weeks away, are centered in part on control of Congress, with President Trump seeking to hold on to Republicans' slim House majority. Several states have redrawn congressional maps ahead of the vote, with Texas moving first at Trump's urging, followed by other states including California.

Why it matters — A sitting Supreme Court justice publicly accusing her court's majority of damaging democracy — two weeks before a national election fought partly over redistricting — is a rare and direct challenge to the court's legitimacy from within its own ranks.

Reported by theguardian.com, thehill.com, abcnews.com, nbcnews.com, foxnews.com, nytimes.com, ap.org, reuters.com