Justice Elena Kagan told an audience at Catholic University’s law school in Washington, D.C., that recent Supreme Court decisions have left American democracy working less well than it should, arguing that the conservative-majority court has repeatedly overlooked the real-world consequences of its rulings.
Kagan made the comments during a discussion with law professor Joel Alicea, a former clerk to Justice Samuel Alito, at an event held before faculty and students. The talk came weeks into the court’s new term, which includes major cases on gun rights and state election integrity laws, and less than two weeks before the midterm elections, amid an ongoing national fight over congressional redistricting.
President Trump and Republican state lawmakers have pushed new congressional maps favoring Republicans ahead of the midterms, prompting Democratic-led states to redraw their own maps in response. The dispute has triggered a wave of lawsuits.
Kagan traced the problem back to the court’s 2019 ruling in Rucho v. Common Cause, a decision she dissented from that barred federal courts from striking down maps simply because they unfairly favor one political party. She said the ruling touched off a “race to the bottom” and stripped “masses of citizens” of their “rights to voting equality.”
She argued that the resulting surge of gerrymandered districts is “driving people away from the center toward the wings, toward the extremes,” adding that this is “making what I think is, unfortunately, a too polarized country even more so.”
Campaign Finance and Voting Rights
Kagan also criticized decisions from the court’s previous term, including a ruling that loosened campaign finance restrictions and another that made it harder to draw majority-minority congressional districts under the Voting Rights Act.
“Part of the reason why the court got it wrong was a kind of lack of the appropriate concern or understanding of the consequences of their decisions,” Kagan said. “I do think in all these areas the court has blinded itself to the very deleterious effects of their rulings on how the political system works and has created a democracy that doesn’t work as well as it should.”
Last term, the court struck down federal limits on how much state and national political parties can spend in coordination with their candidates. Kagan dissented, warning the change effectively lets a political party serve as an “alternative checking account” for a candidate, opening the door for wealthy donors to sidestep direct contribution limits.
“The people of America look around this political system and think that all this money chasing all these political candidates is a nightmare,” Kagan said. “And they’re right.”
A Call Back to Balance
Kagan, appointed to the court in 2010 by President Barack Obama, said the institution functioned better when it had greater ideological balance.
“There was a period of time where the court was in a better place, and the country was in a better place because the court was more balanced, and it was unclear whether the court could push through anybody’s program,” she said. “Nobody in America thought that the court was in the pocket of any one group or any one party. And the court had a kind of legitimacy. When the court has a legitimacy of that kind, it helps to create a stable country.”
Still, Kagan rejected the notion that the court has simply rubber-stamped Trump’s agenda, noting it has rejected his administration’s attempts to restrict birthright citizenship, impose certain tariffs, and limit mail-in voting.
“It’s why the president sometimes really has not very nice things to say about the court’s decisions and some of my colleagues,” she said.
