Even Elena Kagan Is Done Giving The Supreme Court Majority The Benefit Of The Doubt

Justice Elena Kagan is very, very good at taking apart conservative bullshit. This is the justice who looked at the majority’s major questions doctrine and labeled it a set of “get-out-of-text-free cards,” and whose dissents are the rare Supreme Court opinions people read for fun. But Kagan is also a committed institutionalist. She still talks about the Court’s legitimacy as something worth protecting, and she keeps insisting her colleagues are acting in good faith even when the record makes that a stretch. That’s exactly why it should sting when she stands in front of a room of law students two weeks before the midterms and says the conservative majority has broken American democracy.

Kagan spoke Tuesday at Catholic University’s law school, in conversation with Catholic University law professor J. Joel Alicea, a former clerk to Justice Samuel Alito, so not exactly the home crowd. She didn’t soften the diagnosis, as reported by the Associated Press:

“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.”

But this is also the same Elena Kagan who told a room of Ninth Circuit judges back in July that calling the Court a Trump validation machine is “a bad rap”. She ran that one back Tuesday too, calling the rubber-stamp charge a “bum rap,” and pointing to cases where the Court pushed back on Trump: tariffs, birthright citizenship, and mail ballots. So the majority isn’t doing the president’s bidding. It’s just dismantling the democracy that’s supposed to check him…. that’s actually not much better.

Kagan target list was specific, including decisions gutting the Voting Rights Act, the ones knocking down campaign finance regulations, and the 2019 ruling that declared partisan gerrymandering a political question federal courts can’t touch. On the maps, she drew a straight line from that 2019 ruling to the redistricting frenzy currently reshaping the House:

“Over the last couple of years especially, both political parties have been engaged in a race to the bottom in terms of doing these partisan gerrymanders, … making what I think is unfortunately a too polarized country even more so.”

On money in politics, she channeled the average voter:

“The people of America look around and think that all this money chasing all these political candidates is a nightmare, and they’re right.”

Then she went after the majority’s powers of observation:

“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.”

As for why the Court keeps getting it wrong, Kagan’s answer was that it comes down to “a kind of lack of the appropriate concern or understanding of the consequences of their decisions.” Translated out of Kagan-ese: the majority doesn’t give a shit happens once its opinions leave the building.

Kagan’s comments yesterday are far from the first time SCOTUS’s mask has slipped and shown the public the discontent brewing there. This is the Term that opened with the justices spending 170 pages whacking the crap out of each other over tariffs. A few weeks later they were trying jokes at oral argument instead, which lasted about as long as you’d expect.

In April, Justice Sonia Sotomayor publicly apologized to Justice Brett Kavanaugh after saying he “probably doesn’t really know any person who works by the hour.” In May, Justice Ketanji Brown Jackson sent Sam Alito raging by accusing the majority of an “unprincipled use of power” in its rush to implement Callais. Alito, joined by Justices Clarence Thomas and Neil Gorsuch, announced that her dissent “levels charges that cannot go unanswered” and called it “a groundless and utterly irresponsible charge.” And it all comes a year after Justice Amy Coney Barrett announced the majority would not “dwell” on Jackson’s argument about universal injunctions, an insult conservatives cheered and then kept trying to relitigate.

Which circles back to Kagan’s most recent comments. Kagan has spent 16 years betting that if she’s reasonable enough, this majority will eventually listen, and on Tuesday, two weeks before an election being fought on maps her colleagues made possible, she sounded like someone who knows how that bet turned out.

Earlier: Elena Kagan Thinks The Supreme Court Gets ‘A Bad Rap,’ Which Is Either A Lie Or Dangerously Naive
Ketanji Brown Jackson Sends Sam Alito Raging
After The Tariffs Meltdown, Supreme Court Justices Try Jokes Instead
BREAKING: Supreme Court Justices Hate Each Other Like Poison
Jonathan Turley Challenges Justice Jackson To Calvinball In Most Embarrassing Display Yet
Forget It Ketanji, It’s Chinatown
John Roberts Wants America To Understand That He Does Not Care