With pivotal midterm elections two weeks away, Supreme Court Justice Elena Kagan said Tuesday the high court’s recent decisions on voting and campaign finance have damaged the nation’s democracy.
The liberal justice sharply criticized the conservative majority’s rulings this year limiting the Voting Rights Act and loosening campaign finance restrictions during a wide-ranging discussion at Catholic University in Washington, D.C. She also faulted a 2019 decision removing the court from oversight of partisan gerrymandering.
Kagan had dissented from the rulings in each case.
She spoke to law students during the opening weeks of a new Supreme Court term in which the justices will make consequential rulings on assault rifles, climate change and religious rights. The court could be called upon to issue decisions related to the Nov. 3 elections.
“In all these areas, the court has kind of blinded itself to the very deleterious effects of their rulings on how the political system works,” Kagan said of its rulings on voting. “It has created a democracy that does not work as well as it should.”
Kagan said the 2019 decision finding that federal courts should not have a role in policing partisan gerrymandering touched off a “race to the bottom” by both political parties to carve up districts and “depriv[e] masses of citizens” of the right to equality in voting.
That decision “driving people away from the center toward the wings, toward the extremes,” Kagan said. “Making what I think is, unfortunately, a too polarized country even more so.”
Over the summer, the court also curbed limits on coordination between political parties and candidates in campaign finance spending.
“The people of America look around at this political system and think all this money chasing all these political candidates is a nightmare and they are right,” Kagan said.
Kagan said last term’s landmark decision curtailing the last major section of the Voting Rights Act was also deeply problematic. The majority limited the consideration of race in drawing voting maps.
She lamented that the decision touched off a scramble among GOP-controlled states in the south to redraw the congressional districts of many Black Democrats.
“The court kind of said, ‘Oh well,’” Kagan said.
Kagan also criticized the conservative majority for clearing the way for President Donald Trump and other presidents to remove the heads of agencies that Congress set up to be independent of the chief executive.
“The danger is it allows the president to ride roughshod over all the institutions of government,” Kagan said.
Despite disagreeing with the ruling — which Trump had sought — Kagan reiterated a point she made at another recent appearance: that the Supreme Court was getting a “bum rap” for supposedly doing whatever the president wants.
She highlighted rulings by the court checking Trump on his efforts to impose tariffs, restrict birthright citizenship, deploy the National Guard to Chicago and severely restrict 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,” Kagan said.
Trump has harshly attacked the justices in recent months, particularly assailing his three nominees — Amy Coney Barrett, Brett M. Kavanaugh and Neil M. Gorsuch — for ruling against him in some cases.
But Kagan added the court was still “deeply conservative” and willing to bless many priorities of the conservative legal movement.
Kagan said she missed the court that she joined in 2010, saying it was more balanced politically. Kagan was nominated by President Barack Obama.
“The court had a kind of legitimacy,” Kagan said. “When the court has a legitimacy of that kind it helps to create a stable country.”
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