many possibilities blog: Recent Supreme court decisions have been criticized by Justice Kagan

Justice Kagan’s recent critique is fundamentally about three areas where the Court’s recent doctrine leaves the federal judiciary with a smaller role in policing democracy: (1) extreme partisan gerrymandering (Rucho v. Common Cause, 2019), (2) the scope of the Voting Rights Act after Shelby County (2013) and Brnovich (2021), and (3) First Amendment limits on campaign-finance regulation (from Buckley (1976) through Citizens United (2010), McCutcheon (2014), and FEC v. Ted Cruz for Senate (2022)). Constitutionally, these debates center on the Elections Clause (Art. I, §4), Equal Protection (Fourteenth Amendment), the Fifteenth Amendment, and the First Amendment. Reasonable people can disagree on policy effects, but Kagan’s description of trends in the Court’s case law is well-grounded: federal courts largely exited partisan-gerrymandering policing in 2019; the VRA’s preclearance regime was disabled in 2013 and Section 2 narrowed in 2021 (though partially reaffirmed in 2023); and several decisions have struck down campaign-finance limits on First Amendment grounds. Her remarks on October 20–21, 2026, reiterate those themes. (scotusblog.com)

Constitutional provisions most directly implicated

Article I, Section 2: House representatives “chosen every second Year by the People of the several States” (foundation for one-person-one-vote in House races). (supreme.justia.com)
Article I, Section 4, Clause 1 (Elections Clause): state “Times, Places and Manner” of congressional elections, with power in Congress to “make or alter such Regulations.” Core to redistricting authority and federal oversight. (supremecourt.gov)
Article I, Section 5, Clause 1: each House judges the elections and returns of its Members (institutional checks on seating).
First Amendment: protections for political speech and association that drive modern campaign-finance jurisprudence. (supreme.justia.com)
Fourteenth Amendment, Section 1: Equal Protection (malapportionment and racial gerrymandering); Due Process (occasionally invoked). (supreme.justia.com)
Fourteenth Amendment, Section 5 and Fifteenth Amendment, Section 2: Congress’s enforcement power for equal protection and voting-rights guarantees (basis for the VRA). (justice.gov)
Fifteenth Amendment, Section 1: prohibits denial/abridgment of the right to vote on account of race.
Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments: additional voting-rights expansions (gender, poll tax, and age).
Article IV, Section 4 (Guarantee Clause): often cited rhetorically in “democracy” debates but generally nonjusticiable in federal court. (law.cornell.edu)

Historical and case-law background

Partisan gerrymandering and redistricting

The Court opened the door to reapportionment claims in Baker v. Carr (1962), leading to one-person-one-vote rulings in Wesberry v. Sanders (1964) for Congress and Reynolds v. Sims (1964) for state legislatures. (govinfo.gov)
In Vieth v. Jubelirer (2004), a plurality deemed partisan-gerrymandering claims nonjusticiable for lack of manageable standards, while Justice Kennedy kept the door slightly ajar. (law.cornell.edu)
In Rucho v. Common Cause (2019), the Court closed that door: federal courts may not adjudicate partisan-gerrymandering claims; such disputes are political and for states and Congress to resolve. Kagan dissented. Practical effect: more partisan map-drawing shifted to state courts and political remedies. (supremecourt.gov)
Countervailing developments:
- Moore v. Harper (2023) rejected the maximal “independent state legislature” theory and affirmed a role for state courts, under state constitutions, in reviewing congressional maps. (supremecourt.gov)
- States can adopt independent redistricting commissions under the Elections Clause (Arizona State Legislature v. AIRC, 2015). (law.cornell.edu)
- Recent cycle outcomes are mixed: the Court in Alexander v. South Carolina State Conference of the NAACP (2024) made racial-gerrymander claims harder to prove where race and party correlate; meanwhile, in Allen v. Milligan (2023) the Court reaffirmed Section 2 and Alabama ultimately implemented a second Black-opportunity district. (supremecourt.gov)

Voting Rights Act and racial vote dilution

Shelby County v. Holder (2013) invalidated the VRA’s Section 4(b) coverage formula, effectively disabling Section 5 preclearance absent new legislation. Kagan and others have long warned this would have real-world effects on minority representation. (law.cornell.edu)
Brnovich v. DNC (2021) narrowed how Section 2 applies to neutral voting rules (e.g., out-of-precinct policy and third-party ballot collection in Arizona), articulating “guideposts” that make some Section 2 challenges more difficult. (supremecourt.gov)
A partial counterpoint is Allen v. Milligan (2023), which reaffirmed the Thornburg v. Gingles framework and required Alabama to add a second opportunity district for Black voters. Ongoing litigation in Louisiana and South Carolina shows how outcomes now hinge on Section 2 and Equal Protection case-specific records rather than preclearance. (supremecourt.gov)

Campaign finance and the First Amendment

Buckley v. Valeo (1976) drew the foundational line: contribution limits can be justified to prevent quid-pro-quo corruption, but expenditure limits (including a candidate’s own spending) are generally unconstitutional. (supreme.justia.com)
Citizens United v. FEC (2010) allowed unlimited independent expenditures by corporations and unions; McCutcheon v. FEC (2014) struck down aggregate contribution limits. (fec.gov)
FEC v. Ted Cruz for Senate (2022) invalidated limits on repaying candidate loans with post-election contributions, deepening the trend toward deregulation on speech grounds. Kagan views this as further loosening restraints that could reduce electoral competitiveness. (supremecourt.gov)

The “democracy” frame and the Constitution

The Constitution does not use “democracy” as a judicially enforceable standard; the closest textual hooks are the Elections Clause, Equal Protection, and the Fifteenth Amendment. The Guarantee Clause (Art. IV, §4) is generally nonjusticiable, so federal courts rarely use it to police democratic structure. The Court has therefore tended to channel most structural election disputes either to political remedies (Congress/state reforms) or to state courts applying state constitutions. (law.cornell.edu)

How this maps onto Justice Kagan’s October 2026 remarks

Kagan argued at Catholic University of America’s law school on Oct. 20–21, 2026, that these decisions have made the political system less responsive and more polarized—especially after Rucho, because federal courts cannot police extreme partisan gerrymanders, and after Shelby County/Brnovich, because fewer federal guardrails protect minority voting power. That summary matches her long-running dissents and public comments. Note that there are countervailing holdings (e.g., Allen v. Milligan in 2023 and Moore v. Harper in 2023) that preserve some federal VRA enforcement and robust state-court review, but, on net, her doctrinal account of the Court’s trajectory is accurate. (scotusblog.com)

Bottom line

If you agree that entrenched partisan maps and deregulated money in politics reduce competition and accountability, Kagan’s warning resonates with the post-2010 line of cases.
If you prioritize judicial restraint and free-speech protections, you may see the Court’s approach as returning democratic questions to the political sphere and protecting core political expression. Constitutionally, the key levers for change now lie with Congress (Elections Clause/VRA enforcement) and the states (independent commissions, state-constitutional constraints, and litigation in state courts). (justice.gov)

References from the internet used in this answer

AP News, “Justice Kagan warns Supreme Court rulings are fueling polarization and undermining democracy” (Oct. 21, 2026). (apnews.com)
Washington Post, “Justice Kagan: Supreme Court has damaged democracy with recent rulings” (Oct. 20, 2026). (washingtonpost.com)
Rucho v. Common Cause, 588 U.S. 684 (2019) (opinion). (supremecourt.gov)
Moore v. Harper, 600 U.S. ___ (2023) (opinion and LII summary). (supremecourt.gov)
Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. 787 (2015) (opinion). (law.cornell.edu)
Shelby County v. Holder, 570 U.S. 529 (2013) (DOJ/LII). (justice.gov)
Brnovich v. Democratic National Committee, 594 U.S. 647 (2021) (opinion; LII). (supremecourt.gov)
Allen v. Milligan, 599 U.S. ___ (2023) (opinion; SCOTUSblog). (supremecourt.gov)
Alexander v. South Carolina State Conference of the NAACP, 602 U.S. ___ (2024) (opinion). (supremecourt.gov)
Buckley v. Valeo, 424 U.S. 1 (1976) (Justia/GovInfo). (supreme.justia.com)
Citizens United v. FEC, 558 U.S. 310 (2010) (FEC). (fec.gov)
McCutcheon v. FEC, 572 U.S. 185 (2014) (FEC/Justia). (fec.gov)
FEC v. Ted Cruz for Senate, 596 U.S. ___ (2022) (Supreme Court; FEC case page). (supremecourt.gov)
Baker v. Carr, 369 U.S. 186 (1962) (GovInfo/Justia). (govinfo.gov)
Wesberry v. Sanders, 376 U.S. 1 (1964) (Justia/GovInfo). (supreme.justia.com)
Reynolds v. Sims, 377 U.S. 533 (1964) (Justia). (supreme.justia.com)
Vieth v. Jubelirer, 541 U.S. 267 (2004) (LII/Justia). (law.cornell.edu)
Guarantee Clause background (LII Constitution Annotated). (law.cornell.edu)

Sources from the knowledge base used in the answer

Text of the Constitution of the United States (including Amendments I, XIV, XV, XIX, XXIV, XXVI; Articles I and IV).
Generally accepted summaries of one-person-one-vote doctrine and the Elections Clause structure.
High-level understanding of the Supreme Court’s campaign-finance framework from Buckley through Citizens United and McCutcheon, and of VRA doctrine (Gingles framework; Sections 2, 4(b), and 5).

Learn more:

In addition:

Below are additional angles and details that build on this subject. I’ll first anchor them to specific constitutional provisions, then add concise historical context and leading cases.

Constitutional provisions most implicated

Article I, Section 2: “by the People” language for House elections (foundation for one-person-one-vote in congressional districts). See Wesberry v. Sanders (1964) for background.
Article I, Section 4 (Elections Clause): states run federal elections but Congress can “make or alter” the rules; Congress used this power to mandate single‑member districts (2 U.S.C. § 2c). (constitution.congress.gov)
Article I, Section 5: each House judges elections and returns of its Members (institutional backstop).
First Amendment: governs modern campaign‑finance doctrine (speech/association). (supreme.justia.com)
Fourteenth Amendment, Section 1 and Section 5: Equal Protection and Congress’s enforcement power (malapportionment; racial gerrymandering). (supreme.justia.com)
Fifteenth Amendment, Sections 1–2: bar race‑based denial/abridgment of the vote; support for VRA enforcement.
Nineteenth, Twenty‑Fourth, Twenty‑Sixth Amendments: additional voting‑rights guarantees (sex, poll tax, age 18).
Article IV, Section 4 (Guarantee Clause): often invoked in public debate, but generally nonjusticiable.

What else is important right now

Racial vs. partisan gerrymandering—distinct legal tracks

Racial gerrymandering is justiciable under Equal Protection: the Shaw line (Shaw v. Reno, 1993) and later cases like Cooper v. Harris (2017) and Abbott v. Perez (2018) police predominant use of race without sufficient justification. (supreme.justia.com)
Partisan gerrymandering is nonjusticiable in federal court after Rucho v. Common Cause (2019); challenges now largely run through state constitutions and political remedies. (supremecourt.gov)
Recent decisions illustrate the tension when race and party correlate. In Alexander v. South Carolina State Conference of the NAACP (2024), the Court reversed a racial‑gerrymander finding, emphasizing plaintiffs’ high burden where partisan aims are plausible. By contrast, Allen v. Milligan (2023) reaffirmed Section 2’s framework and required Alabama to create a second Black‑opportunity district. (supremecourt.gov)
Section 2 specifics: Thornburg v. Gingles (1986) preconditions persist; Bartlett v. Strickland (2009) requires a numerical majority minority for compelled majority‑minority districts; LULAC v. Perry (2006) struck down Texas’s CD‑23 under Section 2. (supreme.justia.com)

One‑person‑one‑vote and who counts

For state and local districts, states may equalize districts by total population, not just voters—Evenwel v. Abbott (2016). For Congress, equal‑population norms apply as well. (supreme.justia.com)

Standing and timing hurdles that shape outcomes

Standing narrowed in partisan cases: Gill v. Whitford (2018) and Benisek v. Lamone (2018) required district‑specific injuries and made preliminary relief harder. (supremecourt.gov)
The “Purcell principle” cautions against changing election rules close to an election, influencing emergency relief in voting and redistricting disputes. (supreme.justia.com)

State‑constitutional routes after Rucho

State courts can police partisan gerrymandering under their own constitutions. Examples: Pennsylvania’s Free and Equal Elections Clause (2018) and Florida’s “Fair Districts” amendments (2015) produced new congressional maps. Separately, Moore v. Harper (2023) confirmed state‑court review is permissible notwithstanding the Elections Clause. (law.justia.com)

Congress’s underused Elections Clause power

Congress may preempt state choices on the “Times, Places and Manner” of congressional elections, and has done so—e.g., the single‑member district mandate, a uniform election day, and ballot access/administration rules. This is a principal structural lever to address partisan gerrymandering and related issues. (constitution.congress.gov)

Voting Rights Act tools that still remain

Although Shelby County (2013) disabled the Section 5 coverage formula, courts retain “bail‑in” authority under VRA §3(c). Example: Patino v. City of Pasadena (S.D. Tex. 2017) placed Pasadena, Texas, back under preclearance through 2023 after intentional discrimination findings. (law.justia.com)

Campaign finance—what’s left, what’s changing

Contributions vs. expenditures: Buckley’s (1976) framework persists; McConnell v. FEC (2003) largely upheld BCRA’s soft‑money and disclosure rules, but subsequent cases trimmed limits: Citizens United (2010) on independent expenditures (but it upheld disclosure), McCutcheon (2014) on aggregate contribution limits, and FEC v. Ted Cruz for Senate (2022) on loan‑repayment caps. Much of the deregulation stems from First Amendment analysis and, outside the Supreme Court, SpeechNow.org v. FEC (D.C. Cir. 2010) enabled super PACs. (fec.gov)
Disclosure today: Citizens United reaffirmed disclaimers/disclosure for electioneering communications, but Americans for Prosperity Foundation v. Bonta (2021) tightened scrutiny for generalized donor disclosures, showing disclosure law’s shifting boundaries. (fec.gov)
Public financing: the Court invalidated matching‑fund “triggers” in Arizona Free Enterprise Club v. Bennett (2011), limiting some equalizing designs. (supreme.justia.com)
Extremely low contribution caps can be unconstitutional (Randall v. Sorrell, 2006). (supreme.justia.com)

Election‑administration cases beyond redistricting

Many voting‑rule challenges use the flexible Anderson‑Burdick balancing test from Anderson v. Celebrezze (1983) and Burdick v. Takushi (1992), weighing burdens on voters against state interests. This doctrine governs ballot‑access, signature, and many time‑place‑manner rules. (supreme.justia.com)

Reform pathways in practice

Independent redistricting commissions are permissible under the Elections Clause (Arizona State Legislature v. AIRC, 2015), and state‑constitutional reforms have shown concrete results (e.g., Pennsylvania 2018; Florida 2015). (law.cornell.edu)
Alternative electoral systems can change incentives without federal courts: e.g., ranked‑choice voting in Maine for federal general elections and Alaska’s top‑four primary with RCV general elections since 2022. These are state‑law choices consistent with Article I, Section 4. (www3.maine.gov)

Bottom line

The constitutional “hooks” for policing democracy are real but limited. Federal courts still adjudicate racial gerrymandering and VRA Section 2 claims; federal courts largely exited partisan‑gerrymandering policing in 2019; state constitutions and courts now do substantial work; and Congress possesses dormant but significant Elections Clause authority. The practical effects Kagan criticized flow from these doctrines and their interaction with state‑level choices. (supremecourt.gov)

References from the internet used in this answer

Rucho v. Common Cause, 588 U.S. ___ (2019), Supreme Court opinion. (supremecourt.gov)
Moore v. Harper, 600 U.S. ___ (2023), Supreme Court opinion. (supremecourt.gov)
Shaw v. Reno, 509 U.S. 630 (1993); Cooper v. Harris, 581 U.S. ___ (2017); Abbott v. Perez, 585 U.S. ___ (2018). (supreme.justia.com)
Alexander v. South Carolina State Conference of the NAACP, 602 U.S. ___ (2024). (supremecourt.gov)
Allen v. Milligan, 599 U.S. ___ (2023). (law.cornell.edu)
Bartlett v. Strickland, 556 U.S. 1 (2009); LULAC v. Perry, 548 U.S. 399 (2006). (supreme.justia.com)
Evenwel v. Abbott, 578 U.S. ___ (2016). (supreme.justia.com)
Gill v. Whitford, 585 U.S. ___ (2018); Benisek v. Lamone, 585 U.S. ___ (2018). (supremecourt.gov)
Purcell v. Gonzalez, 549 U.S. 1 (2006) (Purcell principle). (supreme.justia.com)
League of Women Voters of Pennsylvania v. Commonwealth (Pa. 2018); League of Women Voters of Florida v. Detzner (Fla. 2015). (law.justia.com)
2 U.S.C. § 2c (single‑member districts). (govinfo.gov)
Patino v. City of Pasadena, No. 4:14‑cv‑3241 (S.D. Tex. Jan. 6, 2017) (VRA §3(c) bail‑in). (law.justia.com)
McConnell v. FEC, 540 U.S. 93 (2003); Citizens United v. FEC, 558 U.S. 310 (2010); McCutcheon v. FEC, 572 U.S. 185 (2014); FEC v. Ted Cruz for Senate, 596 U.S. ___ (2022); SpeechNow.org v. FEC (D.C. Cir. 2010); Americans for Prosperity Foundation v. Bonta, 594 U.S. ___ (2021); Arizona Free Enterprise Club v. Bennett, 564 U.S. 721 (2011); Randall v. Sorrell, 548 U.S. 230 (2006).

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Friday, October 23, 2026

Recent Supreme court decisions have been criticized by Justice Kagan

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Recent Supreme court decisions have been criticized by Justice Kagan

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