Supreme Court Justice Elena Kagan told law students the court's conservative majority has damaged American democracy, a charge she leveled weeks before a hard-fought midterm battle for Congress.
Kagan, one of the high court's three liberals and an appointee of former President Barack Obama, spoke Tuesday to students at Catholic University's law school in Washington. She zeroed in on partisan gerrymandering, a recent Voting Rights Act ruling, and a campaign-finance decision from the court's 6-3 conservative majority.
Reuters reported that she cast those rulings as a threat to how American elections work, arguing the justices failed to grasp the political fallout of their own work.
Her timing was not subtle. The remarks came less than two weeks before the Nov. 3 elections that will decide control of the House and Senate, a point the Washington Examiner flagged in its coverage of the same speech.
President Donald Trump's Republican Party is fighting to keep Congress. Redistricting fights in large states are already reshaping the map. Kagan used that backdrop to blame the court for making a polarized country worse.
Partisan gerrymandering means redrawing district lines to favor one party's voters and candidates. Kagan did not pretend only one side does it.
She said the court's approach "created a race to the bottom" and that both parties are in it.
"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."
That admission matters. At Trump's urging, Republican-led Texas redrew its map last year to flip Democratic-held U.S. House seats. Democratic-led California then reconfigured its own map to target Republican-held seats.
Large states with plenty of Republican and Democratic voters, she warned, are being pushed toward one-party outcomes.
"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."
She also tied safer partisan seats to sharper politics. When the general election is locked in, the real fight moves to the primary.
"toward the extremes, because the only thing anybody has to worry about anymore is being primaried,"
And she added:
"It is making what I think is unfortunately a too polarized country even more so,"
Those lines treat map-drawing as a democracy emergency. They also sit next to her own acknowledgment that Democrats and Republicans both play the same game when they hold the pen. Readers following other map fights have already seen the court stay out of charged redistricting disputes, including when the Supreme Court refused again to restore Missouri's GOP-drawn congressional map.
Kagan pointed to two recent decisions as proof the majority is out of touch with political consequences.
In April, the court issued a Voting Rights Act ruling that Reuters described as gutting a pillar of the 1965 law, which was aimed at blocking racial discrimination in voting. After that decision, Republican-led states across the South moved fast on redistricting and sought to eliminate U.S. House districts where Black voters made up a majority or near-majority.
In June, the court struck down a cap on how much money parties can spend on campaigns with input from candidates. Kagan cast the majority as blind to the practical results.
"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,"
She went further on the system's health overall.
"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,"
On money in politics, she said the court still allows rules against direct quid pro quo corruption, money for favors, but misses broader openings for the same problem.
"The one place where the court has allowed campaign finance regulation to operate is to prevent quid pro quo corruption, kind of money for favors, and the court never seems to see the opportunities for doing exactly that,"
She closed that theme with a populist jab:
"I think you know 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,"
That is a familiar progressive complaint. It is also a complaint aimed at a court majority that has repeatedly treated political spending as tied to speech, not as a blank check for new limits whenever politicians dislike the scoreboard.
Kagan is not a bystander describing dry doctrine. She is a named critic of the conservative majority on the most political cases on the docket, maps, voting rules, and campaign cash, while her own side holds three seats on a nine-member court.
Other justices have pushed back hard when critics slap partisan labels on their work. Justice Alito called the MAGA activist label offensive and said he decides cases on the merits. Kagan's speech runs the other direction: it puts democracy itself in the dock and points at her colleagues.
The court does not draw Texas lines. Legislatures do. The court does not force Sacramento to answer Austin seat for seat. Parties do. When both sides race to lock in House districts, the honest description is hardball politics, not a one-sided judicial demolition of the republic.
Kagan's "race to the bottom" line undercuts the morality play. If Democrats and Republicans are both grinding maps for advantage, the crisis is not that the conservative majority refused to nationalize every redistricting fight. The crisis, on her own terms, is that politicians treat voters as raw material.
Her campaign-finance critique lands in the same place. Americans are weary of endless money in politics. They are also weary of speech rules written by the people who already hold power. Striking a party spending cap with candidate input is not the same thing as greenlighting bribery. Kagan's own words still place quid pro quo corruption in a separate category the court continues to police.
Republicans want to hold Congress in November. Democrats want it back. Texas moved first on a new map last year. California answered. Southern states moved after the April Voting Rights Act decision. That is the concrete sequence behind Kagan's warning about states tipping "all red or all blue."
It is also a sequence driven by governors, legislatures, and party lawyers, the elected and political actors who always owned district lines under the Constitution's basic design. Court majorities change when presidents appoint and the Senate confirms. The current 6-3 split did not appear from a void. It followed elections.
Kagan framed the majority as lacking "appropriate concern" for consequences. That charge is easy to make from the dissent's side of election law. It is harder to square with a system where map fights, voting rules, and money cases are endlessly relitigated by the same parties that lose under neutral principles and then call the result illegitimate.
The court remains in the middle of other charged fights as well, from emergency orders to merits cases. Readers tracking the bench have watched the emergency docket surge again during summer recess, and they can already see major arguments queued up, including a December case on whether the Second Amendment protects AR-15 ownership. Separate from Kagan's speech, the Trump administration is also at the court seeking to enforce the Pentagon's ban on transgender troops.
None of that requires justices to adopt a progressive theory of "democracy" that treats conservative statutory and constitutional rulings as inherently corrosive. Kagan is entitled to her view. Voters are entitled to notice when a liberal justice turns a law-school audience into a forum for attacking the majority's election cases on the eve of a national campaign.
She said the court has built a democracy that "doesn’t work as well as it should." What her examples actually show is a country where both parties gerrymander when they can, where redistricting accelerates after major voting rulings, and where campaign-money fights never end. Blaming the conservative majority for all of that is a political argument dressed up as institutional diagnosis.
When the left loses election-law fights at the Supreme Court, "democracy" suddenly needs saving, and the justices who disagree become the threat.
