Jesse Wegman writes:

Like a lot of Americans, I’ve grown accustomed to Supreme Court justices speaking out much more frequently and informally than they once did. Yet still there was more than one moment in a public conversation Elena Kagan had at Catholic University last month when I almost couldn’t believe what I was hearing.

The justices like to say that their opinions speak for themselves. In the old days, they nurtured the mystique of their delicate yet elevated position in government, rarely if ever revealing their own feelings about the law, American politics or life in general. Anyone who wanted to know what a justice really thought, they claimed, would do best simply to read their rulings.

That is no longer true. Today’s bench is among the most voluble in the court’s history — the justices seem constantly to be writing books, giving speeches, engaging with interviewers and, increasingly, complaining about the institution they serve and (sometimes) the colleagues they serve with.

Even by that new standard, Justice Kagan’s comments, which came during an hour-plus sit-down interview at Catholic University’s law school, broke the judicial omertà, both in what she said explicitly about her conservative counterparts’ blasé attitude toward American democracy and in what she appeared to say about the dangerously compromised state of the court in 2026.

The Catholic University law professor J. Joel Alicea, who interviewed Justice Kagan, started the conversation by asking her about rulings involving partisan gerrymandering, voting rights and money in politics, all of which were decided on party-line votes with her and the other Democratic appointees in the minority.

“The court got it wrong” in each of these cases, Justice Kagan said, because of a “lack of appropriate concern or understanding of the consequences of their decisions.” She pointed to the Republican-appointed majority’s evisceration of the Voting Rights Act in April, which was followed almost immediately by a mad scramble in states across the South to pass new, more partisan gerrymanders aimed at erasing Black lawmakers’ districts.

Protecting Black political participation and representation was precisely what the Voting Rights Act was enacted to do, she noted. By eliminating the last meaningful tool of that landmark law, she explained, “the court kind of said, ‘Oh, well.’” Whether that was meant in the sense of “we don’t care if Black political representation plummets” or in the sense of “it won’t plummet,” Justice Kagan concluded, “the court has kind of blinded itself to the very deleterious effects of their rulings on how the political system works, and has created a democracy that does not work as well as it should.”

This wasn’t the first time she has leveled such sweeping criticisms; you can find similar charges in her dissenting opinions in that and other democracy-related cases, in which she skewered her right-wing colleagues for misunderstanding the law and disregarding Americans’ democratic rights.

But Justice Kagan was offering this critique off the bench, in public — where the justices know their words carry a special significance, particularly before the midterms. Even more surprising, of all the Democratic appointees, if not all nine justices, Justice Kagan has a reputation as the most restrained and institutionalist. [Continue reading…]