Justice Elena Kagan on Tuesday criticized the Supreme Court’s conservative majority for a series of election-related decisions in recent years that she said have led to more polarization and a dysfunctional democracy.
Justice Kagan, one of the court’s three liberals, delivered the sharp critique two weeks before hotly contested midterm elections and in front of an ideologically mixed crowd of law students and professors. In a wide-ranging discussion, she pointed to the court’s rulings that have loosened restrictions on campaign funding, cleared the way for partisan voting maps and undermined landmark voting rights protections.
“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” and has created “a democracy that does not work as well as it should.”
The justice’s remarks came during a conversation at Catholic University’s law school with Prof. J. Joel Alicea, who was a law clerk to Justice Samuel A. Alito Jr., a conservative.
While Justice Kagan has issued strongly worded dissents in individual election-related cases, her remarks on Tuesday amounted to a global critique of how a series of choices by the court’s majority have affected democracy in the United States. Taken together, she said, the rulings have deepened political divisions and made the country’s electoral system work less well.
Justice Kagan wrote the dissent, for instance, when the court in 2019 closed the door on federal litigation challenging voting maps aimed at achieving political ends. As a result, she said, “both political parties have been engaged in a race to the bottom” to draw voting maps that advantage either Democrats or Republicans in a way that “is very destructive of our democracy.”
Similarly, she said the court’s decisions to ease campaign finance rules have left loopholes that have allowed a massive infusion of political contributions into elections.
“The people of America look around this political system and think that all this money chasing all these political candidates is a nightmare,” she said. “And they’re right.”
Justice Kagan spoke as the court’s new term has begun and ahead of midterm contests that will determine control of Congress, and could require the Supreme Court to intervene in post-election challenges. Election-related litigation has already been filed across the country, with both political parties anticipating the possibility of voter intimidation and the seizure of ballots.
In the coming months, the justices will also hear arguments in high-profile cases involving the legality of bans on semiautomatic rifles, religious rights and President Trump’s aggressive crackdown on illegal immigration.
Even as the court has moved to the right with the addition of three justices nominated by Mr. Trump, Justice Kagan, a nominee of President Barack Obama, has at times found compromise with her colleagues selected by Republican presidents.
Before joining the bench in 2010, she was the dean of Harvard Law School, where she was known for building coalitions and recruiting conservative faculty members.
On Tuesday, Justice Kagan was the first justice who was nominated by a Democratic president and is a non-Catholic to take part in the annual event sponsored by the Center for the Constitution and the Catholic Intellectual Tradition. She is the fifth justice to participate.
She went over the allotted hour for the event and seemed eager to offer a polite takedown of originalism, the theory embraced by conservative justices that the Constitution should be interpreted based on its public meaning at the time it was adopted.
“They were writing the Constitution for the ages. They were writing the Constitution, knowing that there would be change in the world,” she said.
“The whole project” of originalism, she added, “is kind of misconceived, and it’s not a very good match with the Constitution we have.”
Even as Justice Kagan faulted the conservative majority for not considering the consequences of its election-related rulings, she reiterated her defense of the conservative-dominated bench from a July appearance and said it was a “bum rap” to suggest the court had been too deferential to Mr. Trump.
In the court’s term that wrapped up in late June, the justices delivered long-sought conservative wins that expanded presidential power over immigration and the federal bureaucracy, in addition to dealing a blow to the Voting Rights Act of 1965, a landmark civil rights law.
But the court, including justices nominated by Mr. Trump, also rejected some of his marquee policies. The court struck down the president’s tariffs, blocked his order to end the guarantee of birthright citizenship for the U.S.-born babies of undocumented immigrants and prevented him from immediately firing a leader of the Federal Reserve.
Recent polls have shown declining public opinion of the Supreme Court with a majority of Americans saying the justices are motivated mainly by politics rather than law, according to a September survey conducted by Marquette University Law School. Those unfavorable views come as Democratic officials and candidates are increasingly calling for structural changes to the court should the party win control of Congress.
Justice Kagan said the court she joined 16 years ago was more balanced and held in higher esteem by the public in part because it was less predictable. She pointed to the period after Justice Antonin Scalia died in 2016 when she said the justices had to compromise, listen and issue narrow rulings to try to avoid being deadlocked 4 to 4.
“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.”
“Nobody in America thought that the court was in the pocket of any one group or any one party,” she said, “and the court had a kind of legitimacy.”
