Justice Kagan Is Right That the Court Stepped Back and Let Democracy Wear Down

Supreme Court justices usually let their opinions do the talking. So it was notable when Justice Elena Kagan told an audience at Catholic University’s law school on Tuesday that the court’s conservative majority had blinded itself to the damage its rulings were doing, leaving the country with a democracy that does not work as well as it should.

She was specific. The 2019 decision that closed federal courts to claims of extreme partisan gerrymandering, she said, started a race to the bottom in which both parties carve districts for maximum advantage. The court’s rulings on the Voting Rights Act amounted to an evisceration. Its repeated rejection of campaign finance limits has produced a flood of money that voters see as a nightmare. And a ruling this year expanding the president’s control over independent agencies raised what she called the danger of one president overriding the rest of government.

The evidence is in front of us. Ahead of the Nov. 3 midterms, Texas redrew its congressional map in the middle of the decade at President Trump’s urging, and other states, including California, answered in kind. After a ruling this year, several Republican-led states eliminated majority-Black districts. Voters in many places will choose their representatives in districts designed so that the outcome is largely settled before a single ballot is cast.

The majority’s defenders have a serious argument, and it deserves a fair statement: judges have no neutral formula for deciding how much partisanship in mapmaking is too much, political spending is a form of speech the First Amendment protects, and unelected courts should be wary of refereeing elections. Those are real concerns about judicial power, and we share a wariness of courts that reach too far.

But restraint is not neutral when it leaves voters with no referee at all. When the court declares a problem beyond its reach, the people harmed are left to seek relief from the very officials who benefit from the harm. Legislators who draw their own districts have little reason to give that power up. That is how a democracy wears down without anyone breaking a law.

It is also worth noting what Kagan did not say. She rejected the claim that the court is a rubber stamp for the president, calling it deeply conservative but pointing to its ruling against his sweeping tariffs. That is a fair and useful corrective. The court is not a partisan instrument. Its problem is a theory of its own role that treats the health of the democratic process as someone else’s job.

If the court will not act, others must. Congress can set national standards against partisan gerrymandering for House districts, strengthen the Voting Rights Act and require timely disclosure of political spending. States can hand redistricting to independent commissions, as several already have, and voters can insist on it through ballot measures where they are allowed.

None of that requires a constitutional amendment or a single new justice. It requires lawmakers in both parties to decide that fair maps and clean elections matter more than a few extra seats. Kagan has described the problem plainly. The people who can fix it are on the ballot in two weeks.