In a speech at Catholic University’s law school, Justice Elena Kagan said the American public sees a troubling political system, and Slate’s Dahlia Lithwick and legal commentator Madiba Dennie say that’s a pointed warning about the Supreme Court itself.
Lithwick says Kagan is typically the most cautious justice on partisan topics, which makes a speech weeks before the midterms stand out.
In her speech, Kagan said Americans “look around this political system and think that all this money chasing all these political candidates is a nightmare … and they’re right.”
Dennie, deputy editor at Balls and Strikes, argued Kagan was acknowledging that the court is worsening the problem, pointing to its rulings on campaign finance, gerrymandering, and political corruption. She called it rare for a sitting justice to concede that decisions are “affirmatively bad” for democracy.
Dennie also highlighted Kagan’s remarks on originalism, which the justice said is “kind of misconceived” and a poor match for a Constitution written, “for the ages.” Dennie noted Kagan once said, with some sarcasm, that “we’re all originalists now,” and called the change a major shift. She also pointed to Hillary Clinton recently calling for a 13-justice Court.
"It seems like such a shift among the elites finally saying that the system we have now is not sustainable, and that we need to do things like change our method of constitutional interpretation," she said. "We need to do things like change how the court is composed and change not only what it is that the court is actually doing, but also how."
Dennie read Kagan’s message as a call to vote, since a new Congress would be needed to pursue court reform.