Kagan Warns Far Right Supreme Court Rulings Will Undermine American Democracy

Supreme Court Justice Elena Kagan warned a group of law students at Catholic University on Tuesday that the current iteration of the court — which has a 6-3 majority of far right conservatives — is upending American democracy.

Kagan focused much of her remarks on addressing gerrymandering over the past year by both political parties. The map-changing began when Republicans started redrawing districts in order to get an upper hand over Democrats in the midterms. Democrats responded in kind, redrawing maps in states where they were more likely to see gains to counter the Republicans’ efforts.

(Democrats have also submitted legislation to prevent these “gerrymander wars” in the future by requiring nonpartisan boards to redraw maps going forward, a proposal that Republicans have rejected.)

“Both political parties have been engaged in a race to the bottom in terms of doing these partisan gerrymanders, effectively depriving masses of citizens of their rights to voting equality,” Kagan lamented in her lecture to the law students.

Such gerrymandering pushes political parties “toward the extremes, because the only thing anybody has to worry about anymore is being primaried,” Kagan said.

She added:

It is making what I think is unfortunately a too polarized country even more so. In this election, and the next election, we are seeing large states with substantial numbers of people who vote for Republicans and who vote for Democrats, and the states are going to be tried to turn all red or all blue in a way that I think is very destructive to our democracy.

Through these redistricting efforts, many conservative states ended up gerrymandering Black residents out of districts where they were the majority, thus reducing their voices in Congress. The conservative-led Supreme Court upheld that process this year, ruling that enforcement mechanisms for the Voting Rights Act that preserved Black-majority districts were unconstitutional, a finding that Kagan dissented from.

She elaborated on her opposition to that opinion on Tuesday.

“I think part of the reason why the court got it wrong was a lack of the appropriate concern or understanding of the consequences of their decisions. … 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,” Kagan said.

The liberal justice also discussed the Supreme Court’s rulings on campaign finance, which have opened up the floodgates of influence spending by millionaires and billionaires in recent years.

“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,” Kagan said.

Polling shows that a majority of Americans are indeed upset with the current iteration of the nation’s high court.

In an Economist/YouGov survey conducted at the end of the Supreme Court’s term earlier this year, only 36 percent of voters gave the justices overall approving marks, while 50 percent voiced disapproval of the court. There was a notable partisan edge in favor of liberal bloc members of the court, the poll found, noting that every member of that bloc received net positive ratings, while every conservative justice on the court received negative ratings.

The Supreme Court’s rulings threaten to undermine election safety, too, said Dan Canon, professor at the Louis D. Brandeis School of Law, in an op-ed for Truthout earlier this week.

“What harm might result from the opinions of today’s Court, an institution unmistakably captured by a power-hungry executive? In a nation of this size, facing democratic decay this severe, there is no such thing as a safe prediction,” Canon wrote. “But if you’re the gambling type, the smart money is on a spectacularly violent future for U.S. elections, if not in the upcoming midterms, then likely by 2028.”

“At their best, independent courts channel even the most heated political grievances into nonviolent resolutions,” Canon said. “If an apex court abdicates that role by disenfranchising voters, institutionalizing clientelism, and shielding executive lawlessness, it removes the pressure valves that keep democratic competition peaceful.”

Pointing to rulings on voter exclusion, corruption, constraints on the executive branch, and more, Canon concluded that such violence may come sooner than most may think.

“If unprecedented violence does not attend the next few U.S. elections, it will be in spite of this Supreme Court, not because of it,” he said.