Kagan Slams Conservative Justices for Gerrymandering Ruling That “Imperils Our System of Government”

In her dissent, Justice Elena Kagan said the Supreme Court’s conservative majority abdicated its role to protect voters’ rights.

Activists opposed to partisan gerrymandering protest outside the US Supreme Court on March 26.Carolyn Kaster/AP

Fight disinformation: Sign up for the free Mother Jones Daily newsletter and follow the news that matters.

Justice Elena Kagan tore into Chief Justice John Roberts’ logic Thursday in throwing out two partisan gerrymandering cases, accusing the Supreme Court’s conservative justices of “abandon[ing] the Court’s duty to declare the law” and “imperil[ing] our system of government.”

Writing for the conservative majority in a 5-4 decision, Roberts found that the federal courts cannot strike down extreme gerrymandering intended to benefit one political party over another. In doing so, the justices on Thursday declared open season for hyper-gerrymandering, giving the majority party license to rig state district lines in 2021, when the next round of nationwide redistricting will take place. The decision is a doomsday scenario for voting rights, permitting state lawmakers to choose their voters, rather than allowing voters to select their representatives.

The majority essentially abdicated its responsibility to rein in partisan gerrymandering by stating that it’s a political question too tricky for the legal minds on the nation’s highest court to tackle. The ruling leaves voters in many states without recourse when their participation in the democratic process is diluted through gerrymandering.

Kagan was having none of it. She wrote, “For the first time in this Nation’s history, the majority declares that it can do nothing about an acknowledged constitutional violation because it has searched high and low and cannot find a workable legal standard to apply.” Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor joined Kagan’s dissent.

Kagan wrote that the majority’s claim that it couldn’t solve this problem was dubious, given that lower-court judges in the same cases—in Maryland and North Carolina—had assessed the evidence and ruled accordingly. It’s hard work, but it’s doable. “By substantially diluting the votes of citizens favoring their rivals, the politicians of one party had succeeded in entrenching themselves in office,” Kagan wrote of the lawmakers in Maryland and North Carolina who orchestrated the gerrymanders. “They had beat democracy.” The conservative majority let them get away with it.

Roberts, in his ruling for the majority, wrote that state courts offered one venue for addressing partisan gerrymandering in the future. “But what do those courts know that this Court does not?” Kagan wrote. “If they can develop and apply neutral and manageable standards to identify unconstitutional gerrymanders, why couldn’t we?” 

With the 2020 census and redistricting around the corner, state legislatures across the country will feel emboldened to draw districts that entrench one party’s power. Voters in have some recourse: In certain states, voters have the power to approve independent redistricting commissions, and in others, state constitutions and laws provide a path to challenge gerrymandering in state courts. But in many states, neither route is available. With improved data collection and powerful computer software, gerrymandering has evolved into nearly a science, and it may cause millions of voters across the country to lose the power to choose their representatives by being packed into uncompetitive districts where their votes could have little effect. 

“The ‘core principle of republican government,’ this Court has recognized, is ‘that the voters should choose their representatives, not the other way around,'” Kagan wrote, adding, “The majority disputes none of this.” She concluded, “Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections.” 

AN IMPORTANT UPDATE

We’re falling behind our online fundraising goals and we can’t sustain coming up short on donations month after month. Perhaps you’ve heard? It is impossibly hard in the news business right now, with layoffs intensifying and fancy new startups and funding going kaput.

The crisis facing journalism and democracy isn’t going away anytime soon. And neither is Mother Jones, our readers, or our unique way of doing in-depth reporting that exists to bring about change.

Which is exactly why, despite the challenges we face, we just took a big gulp and joined forces with the Center for Investigative Reporting, a team of ace journalists who create the amazing podcast and public radio show Reveal.

If you can part with even just a few bucks, please help us pick up the pace of donations. We simply can’t afford to keep falling behind on our fundraising targets month after month.

Editor-in-Chief Clara Jeffery said it well to our team recently, and that team 100 percent includes readers like you who make it all possible: “This is a year to prove that we can pull off this merger, grow our audiences and impact, attract more funding and keep growing. More broadly, it’s a year when the very future of both journalism and democracy is on the line. We have to go for every important story, every reader/listener/viewer, and leave it all on the field. I’m very proud of all the hard work that’s gotten us to this moment, and confident that we can meet it.”

Let’s do this. If you can right now, please support Mother Jones and investigative journalism with an urgently needed donation today.

payment methods

AN IMPORTANT UPDATE

We’re falling behind our online fundraising goals and we can’t sustain coming up short on donations month after month. Perhaps you’ve heard? It is impossibly hard in the news business right now, with layoffs intensifying and fancy new startups and funding going kaput.

The crisis facing journalism and democracy isn’t going away anytime soon. And neither is Mother Jones, our readers, or our unique way of doing in-depth reporting that exists to bring about change.

Which is exactly why, despite the challenges we face, we just took a big gulp and joined forces with the Center for Investigative Reporting, a team of ace journalists who create the amazing podcast and public radio show Reveal.

If you can part with even just a few bucks, please help us pick up the pace of donations. We simply can’t afford to keep falling behind on our fundraising targets month after month.

Editor-in-Chief Clara Jeffery said it well to our team recently, and that team 100 percent includes readers like you who make it all possible: “This is a year to prove that we can pull off this merger, grow our audiences and impact, attract more funding and keep growing. More broadly, it’s a year when the very future of both journalism and democracy is on the line. We have to go for every important story, every reader/listener/viewer, and leave it all on the field. I’m very proud of all the hard work that’s gotten us to this moment, and confident that we can meet it.”

Let’s do this. If you can right now, please support Mother Jones and investigative journalism with an urgently needed donation today.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate