Elena Kagan Says She Wrote Her Gerrymandering Dissent For History
Justice Elena Kagan repeated her vigorous criticism of the Supreme Court’s June ruling on partisan gerrymandering Thursday, saying the majority’s decision was “abysmally wrong.”
Chief Justice John Roberts led a five-justice majority to decide that federal courts cannot resolve disputesover partisan line-drawing. Kagan wrote the principle dissent in that case.
“There’s no part of me that’s ever going to become accepting of the decision made — essentially that the courts shouldn’t get involved with gerrymandering no matter how bad it is and no matter how destructive of our political system it is, which is the decision that the Court reached,” the justice said during an interview at the Georgetown University Law Center.
“There were difficult issues in the case,” Kagan added. “You can understand why the majority reached the decision it did. I’m one hundred percent certain in every bone of my body that the majority was acting in complete good faith as to why it reached the decision it did. But I do think it got it wrong,” she added. (RELATED: Was Brett Kavanaugh Saved By His Enemies?)
Kagan made the remarks in the course of describing her approach to dissenting opinions. In some instances, Kagan says she feels duty-bound to inform the parties that some justices were inclined to the losing side. On other occasions, Kagan said she writes dissents for a historical audience, hoping to convince future generations that the Court seriously erred.
The gerrymandering dissent falls into the latter category, she said. Kagan went on to express hope that the political conditions she believes gerrymandering engenders — like extreme partisanship and political dysfunction — will convince the Supreme Court to change its mind at some point in the future.
The justice read her dissent from the bench when the decision was handed down, a seldom-used prerogative meant to signal strong disagreement with the majority opinion. Kagan grew emotional at times as she read her dissent.
“In the face of grievous harm to democratic governance and flagrant infringements on individuals’ rights — in the face of escalating partisan manipulation whose compatibility with this nation’s values and law no one defends — the majority declines to provide any remedy,” Kagan wrote. “For the first time in this nation’s history, the majority declares that it can do nothing about an acknowledged constitutional violation.”
She concluded the opinion in somewhat unusual fashion, saying she dissented “with respect but deep sadness.”
The Supreme Court is currently adjourned for the summer, but the justices will gather on Monday when the late Justice John Paul Stevens lays in repose in the Court’s Great Hall.