Justice Kagan Denounces ‘Deeply Conservative’ Supreme Court as ‘Blinded’ — and Rips Originalism as ‘Misconceived’

Justice Elena Kagan excoriated the Supreme Court on which she sits less than two weeks before America votes, in what amounts to a stunning repudiation of the court’s recent spate of election-related rulings.Justice Kagan’s remarks on Tuesday came at Catholic University’s law school, and they focused largely on the court’s refusal to rein in partisan gerrymandering. The justice, who was nominated to the high bench by President Obama in 2010, insists that the result has been that “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.”Justice Kagan contends that gerrymandering drives voters “toward the extremes, because the only thing anybody has to worry about anymore is being primaried.” She predicts that “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.”The decision that drew Justice Kagan’s ire, Louisiana v. Callais, was handed down in April. The six-to-three ruling struck down a Pelican State congressional map that a group of “non-African American” voters had challenged as the product of unconstitutional racial gerrymandering. Justice Kagan wrote in dissent — joined by Justices Sonia Sotomayor and Ketanji Brown Jackson — that the ruling rendered the 1965 Voting Rights Act “all but a dead letter.”In some sense, the justice could be correct about the Voting Rights Act being “all but a dead letter.” No less a fgure than Justice Sandra Day O’Connor wrote — in 2003 — that “We expect that 25 years from now, the use of racial preferences will no longer be necessary” as civil rights conditions improved. That case, Grutter v. Bollinger, concerned affirmative action rather than the Voting Rights Act. Callais set off a fervent round of redistricting in the South. The broader clash over redistricting has drawn in California and Texas as well as other states. In an analysis published on Tuesday, though, the Associated Press calculates that “even as one-third of the nation’s districts were redrawn to some extent this cycle, the national House map shifted only slightly toward Republicans” — a rearrangement that “may not be enough to stop Democrats from flipping control of the chamber in November.”Justice Kagan told Catholic University that “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. 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.”Justice Kagan singled out another decision she viewed with opprobrium — National Republican Senatorial Committee v. Federal Election Commission, a six-to-three decision handed down in June. That ruling struck down a federal law that limited the amount of money political parties can spend in coordination with a candidate for office, finding the restriction unconstitutional under the First Amendment.As a result of that ruling — one in a line of such decisions stretching back to Citizens United v. FEC in 2010 — Justice Kagan averred that 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.”Justice Kagan’s appearance came at the Center for the Constitution and the Catholic Intellectual Tradition. She is the first justice to appear at that event who is not Catholic. She also took the opportunity to argue that “the whole project of originalism is kind of misconceived, and it’s not a very good match with the Constitution we have.” The Framers, she added, “were writing the Constitution for the ages. They were writing the Constitution, knowing that there would be change in the world.”In July, though, Justice Kagan rose to the defense of her conservative colleagues. She told a conference in Bellevue, Washington, that “I don’t see this as a court that is just like, ‘We’re just going to rubber stamp what the current administration does.’ You know, quite the opposite.” She criticized the perception that the court is a “rubber stamp” for President Trump as nothing more than a “bad rap.” On Tuesday, she acknowledged the Roberts Court is “deeply conservative.”A day before Justice Kagan spoke in the District of Columbia, a former colleague of hers, Harvard’s Noah Feldman — Justice Kagan served as dean of Harvard Law School before joining the Nine — uploaded a video to X extolling her as “insanely skilled at getting people with differing viewpoints to compromise” and declaring that “those powers of consensus-building might have made her a once-in-a-generation (Chief) Justice.” He also hails her as “The Queen of Compromise.”

Justice Kagan Denounces ‘Deeply Conservative’ Supreme Court as ‘Blinded’ — and Rips Originalism as ‘Misconceived’

Justice Kagan Denounces ‘Deeply Conservative’ Supreme Court as ‘Blinded’ — and Rips Originalism as ‘Misconceived’

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