Supreme Court’s conservatives have let down democracy, Justice Kagan says
Two weeks before the midterm elections, liberal Justice Elena Kagan bluntly sized up the Supreme Court handling of election and voting-related cases, saying, “The court has kind of blinded itself to the very deleterious effects of their rulings on how the political system works.”
The court “has created a democracy that does not work as well as it should,” Kagan added, as she took advantage of provocative questions posed at a Catholic University law event Tuesday.
Kagan, one of the three liberals on the nine-member bench, has dissented as the conservative majority has gutted voting rights protections over more than a decade. But her criticisms were especially timely, as the midterms near and against the backdrop of ongoing challenges to democratic norms in the era of President Donald Trump.
“I do think it’s just about the most important thing that the court does,” Kagan said of election law.
Describing voting rights as “foundational,” she said, “If you basically get democracy down, if you get a well-functioning, healthy political system then you can count on that political system for a wide range of outcomes.”
Kagan’s remarks came in a conversation with Catholic University law professor J. Joel Alicea, who was a law clerk to Justice Samuel Alito, solidly in the majority of the cases Kagan condemned.
The school’s Center for the Constitution and Catholic Intellectual Tradition, which Alicea directs, had previously hosted several of the conservative justices. This was Kagan’s first time on the campus as a speaker.
Alicea opened the hour-long session by allowing Kagan to expound on her dissenting views in an area that he acknowledged was plainly important to her. Last session, Kagan protested the majority’s retrenchment on the 1965 Voting Rights Act (Louisiana v. Callais) and its rejection of campaign finance restrictions (National Republican Senatorial Committee v. Federal Election Commission).
Kagan was especially dismayed in the Louisiana case handed down in April. She read portions of her dissent from the bench – losing her voice soon after – as the majority gave state legislators greater latitude to draw maps that may dilute the political power of Black and Latino voters. Several southern states quickly began redistricting after the ruling in ways designed to give White Republican candidates an advantage.
Alicea also referred to an especially forceful 2019 Kagan dissent in Rucho v. Common Cause, when she condemned the court’s decision forbidding federal judges from reviewing and preventing partisan gerrymanders in congressional maps.
The problem, Kagan said, was that the justices in the majority of those cases showed “a lack of appropriate concern or understanding of the consequences of their decisions.”
“If there’s like any place where you should think about consequences, it is where your mission is to think about, ‘Is this political system going to operate as intended by the Constitution and is intended by Congress?’”
Kagan is likely to remain on the downside in this area of the law for the near future.
She added, someone dejectedly, “I have found myself in dissent in this area more than I would like.”
