Justice Elena Kagan took the unusual step this week of publicly attacking the Supreme Court's conservative majority, declaring that its recent rulings on redistricting, campaign finance, and voting rights have made the American political system "a nightmare" — a frank admission that the left's electoral strategy depends on courts doing work voters and legislatures won't do for them.
Speaking Tuesday at Catholic University's law school in Washington, D.C., Kagan argued that the 6-3 conservative majority "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."
The remarks come two weeks before midterm elections and after a term in which the court struck down Louisiana's congressional map — effectively gutting a major section of the Voting Rights Act — and struck down campaign finance restrictions limiting how much political parties may spend on candidates. Both decisions were 6-3 along ideological lines.
Kagan's core complaint centers on the court's 2019 ruling that federal courts have no business policing partisan gerrymandering. As a result, she said, "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."
NBC News noted that several states have redrawn their congressional maps to maximize the majority party's advantage, with Texas moving first at President Trump's urging, followed by California and others.
Kagan argued the gerrymandering ruling is pushing candidates "away from the center, toward the wings, toward the extremes, because the only thing anybody has to worry about any more is being primaried."
On campaign finance, Kagan said: "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."
NBC News reported that Kagan also criticized the court's ruling this year giving the president greater control over independent federal agencies, warning of "the danger of one president being able to ride roughshod over all the other institutions of government and over the people." Notably, however, Kagan pushed back on claims that the court is a rubber stamp for Trump, citing rulings where the president lost — including his attempt to impose sweeping tariffs — and calling the court "deeply conservative" rather than partisan.
The Guardian framed Kagan's remarks as a straightforward critique of conservative overreach, while NBC News provided the additional context of her defense of the court against rubber-stamp accusations — a nuance The Guardian buried.
What Kagan calls a "nightmare" is, in constitutional terms, the court returning political questions to the political branches. The 2019 gerrymandering ruling didn't endorse partisan map-drawing; it said federal courts lack the constitutional authority to police it. The campaign finance ruling freed political parties to spend their own money. The Voting Rights Act decision returned map-drawing authority to states. In each case, the court stepped back from legislating from the bench.
Kagan's frustration is understandable from her vantage — she has dissented in every one of these cases. But her argument boils down to this: when courts stop making policy, democracy suffers. The founders would have called that the point.
The open question heading into November is whether voters will punish the parties drawing lopsided maps — or whether, absent judicial intervention, they'll simply accept the districts they're given.
