"The court has kind of blinded itself to the very deleterious effects of their rulings on how the political system works," liberal Justice Elena Kagan said in a direct assessment of the Supreme Court's handling of matters pertaining to elections and voting two weeks prior to the midterm elections.
Taking advantage of thought-provoking questions at a Catholic University law seminar on Tuesday, Kagan continued, "The court has created a democracy that does not work as well as it should."
As the conservative majority has undermined voting rights protections over the course of more than ten years, Kagan, one of the three liberals on the nine-member bench, has dissented. However, given the approaching midterms and the continuous threats to democratic norms in the Trump administration, her criticisms were particularly pertinent.
Regarding election law, Kagan stated, "I do think it's just about the most important thing that the court does."
"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," she stated, referring to voting rights as "foundational."
Kagan's comments were made during a discussion with J. Joel Alicea, a law professor at Catholic University who worked as Justice Samuel Alito's law clerk in most of the cases that Kagan denounced.
Several of the conservative judges had previously attended the school's Center for the Constitution and Catholic Intellectual Tradition, which Alicea oversees. Kagan had never given a speech on campus before.
The hour-long meeting began when Alicea gave Kagan the opportunity to elaborate on her opposing viewpoints in a topic that he recognized was obviously significant to her. Kagan objected to the majority's rejection of campaign finance limitations (National Republican Senatorial Committee v. Federal Election Commission) and its retreat on the 1965 Voting Rights Act (Louisiana v. Callais) during the previous session.
The Louisiana case that was decided in April particularly disappointed Kagan. As the majority gave state lawmakers more freedom to create maps that could weaken the electoral influence of Black and Latino voters, she read parts of her dissent from the bench and quickly lost her voice. Following the decision, a number of southern states swiftly started redistricting in order to favor White Republican candidates.
Additionally, Alicea cited a particularly strong 2019 Kagan dissent in Rucho v. Common Cause, in which she denounced the court's ruling prohibiting federal judges from examining and stopping partisan gerrymandering in congressional maps.
The justices in most of those instances demonstrated "a lack of appropriate concern or understanding of the consequences of their decisions," according to Kagan.
"Your mission is to consider whether this political system will function as intended by Congress and the Constitution, if there is any place where you should consider consequences."
For the foreseeable future, Kagan is probably going to stay on the downside in this area of the law.
"I have found myself in dissent in this area more than I would like," she continued sadly.
