Kagan’s comments came as she discussed a fiery dissent she wrote for the minority in Rucho v. Common Cause, the closely watched gerrymandering case the Supreme Court decided on June 27. The majority, led by Chief Justice John Roberts, ruled that courts couldn’t play a role in setting limits on partisan gerrymandering. In a blistering dissent, Kagan accused the court of abandoning its duty and said the decision “imperil our system of government.”
In an appearance at Georgetown University Law Center, Kagan said she thought the majority acted completely in good faith in reaching its conclusions. But she made it clear she strongly disagreed with the reasoning.
“I didn’t really pull my punches about the importance that I thought that decision had to our political system and to the way we govern ourselves,” Kagan said. “There’s no part of me that’s ever going to become accepting of the decision made ― essentially that the court shouldn’t get involved in gerrymandering no matter how bad it is and no matter how destructive of our political system it is.”
The cases the Supreme Court ruled on involved heavily gerrymandered congressional districts in North Carolina and Maryland. In North Carolina, Republicans controlled the redistricting process in 2011 and have been able to control the vast majority of the state’s congressional seats even though the state is competitive politically. In Maryland, the suit involved a single congressional district that Democrats admitted they redrew to flip from a Republican one to a Democratic one.
Kagan also said she was writing for the future, when the court might be willing to revisit its thinking on partisan gerrymandering.
“You’re not writing the dissent because you just saw the thing differently and you think everybody should know that there were two sides to this issue. You’re writing a dissent because you want to convince the future,” she said. “For the future, you know, maybe the court will change its mind on this one. Maybe things will happen that will convince it to change its mind. Maybe the world will look different enough in however many years that this will be an appropriate opportunity.”
“There are dissents where it’s like, ‘Well, I saw the case differently, here’s the way I saw it and now we start all over again.’ And there are dissents that are ‘This is abysmally wrong,’” she added.
Kagan also encouraged reformers who are working to rein in gerrymandering absent action by the federal courts. After the Supreme Court’s decision, those reformers are looking to bring gerrymandering challenges before state courts and to create independent redistricting commissions as pathways to a fairer process.