Kagan diagnoses American democracy with a Supreme Court problem

Justice Elena Kagan said the high court had created a democracy that does not work as it should.WASHINGTON (CN) — Weeks ahead of the midterm elections, Justice Elena Kagan on Tuesday offered a health check on American democracy, identifying the Supreme Court’s rulings on election law as a malignancy.The Barack Obama appointee said her colleagues’ ignorance to the real world consequences of their rulings on voting rights, campaign finance and political corruption had undermined the system of American governance.“The court has kind of blinded itself to the very deleterious effect of their rulings on how the political system works, and has created a democracy that does not work as well as it should,” Kagan said while speaking at Catholic University.In key cases over the last few years, Kagan penned sharp dissents over the high court’s decisions to prevent courts from policing partisan gerrymandering, loosening regulations on campaign finance targeting corruption and gutting the Voting Rights Act.Kagan said Tuesday night the current state of the political system proved that the court’s majority had been wrong in those cases. She noted that partisan gerrymanders kicked off a “race to the bottom” between the political parties, depriving citizens of voting equality and making a too polarized county even more so. And Kagan chastised the court for never seeming to see opportunities to prevent quid pro quo corruption.“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.When considering its recent landmark ruling on the Voting Rights Act, the majority said it wasn’t clear that Black political representation would plummet. But in the weeks that followed, Kagan noted that southern states decided to redistrict to get rid of Black districts.“If you think about what these opinions do, you kind of have an idea of why they’re wrong,” Kagan said.Kagan commented on a wide range of issues, including executive authority, originalism and the high court’s conservative bend. She bemoaned her colleagues’ decisions to remove checks on presidential power, but Kagan also noted that the high court had also pushed back on important issues like using the National Guard to quell protests and restrictions on mail in voting.“These were all things that were important presidential priorities,” Kagan said. “These were not little things on the margin. These were things that President Trump cared deeply about … It’s why the president sometimes really has not very nice things to say about the court and its decisions and about some of my particular colleagues. It’s because the court has pushed back.”Despite occasionally ruling against the current administration, Kagan said that the Supreme Court remains very conservative — a stark departure from when she joined the bench 16 years ago.“This court is deeply conservative and has accomplished and has put forward many things that have long formed part of the conservative legal agenda,” Kagan said.Kagan reminisced about the year when the Supreme Court only had eight members after Justice Antonin Scalia’s death. Kagan said there was something “incredibly right” about that period because the court couldn’t do much and had to compromise.“We had to listen really hard to each other, and nobody in America thought that the court was in the pocket of any one group or any one party or any one anything,” Kagan said. “The court had a kind of legitimacy that helps to create a stable country.”Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads