Kagan Rips Roberts For ‘Tragically Wrong’ Opinion OKing Partisan Gerrymandering

WASHINGTON, DC - June 30: President Obama's U.S. Supreme Court nominee Elena Kagan testifies during her Senate Judiciary nomination hearing. (Photo by Scott J. Ferrell/Congressional Quarterly/Getty Images)
June 27, 2019 11:07 a.m.

Supreme Court Justice Elena Kagan held nothing back in a Thursday dissent criticizing Chief Justice John Roberts’ opinion that said federal courts could not rein in partisan gerrymandering.

“In giving such gerrymanders a pass from judicial review, the majority goes tragically wrong,” Kagan, who was joined by the court’s three other liberals, wrote. 

She said the conservative majority erred by paying “so little attention to the constitutional harms at their core.”

She went into the details of the two cases in front of the court — challenges to a Democratic-drawn map in Maryland and GOP-drawn map in North Carolina — and how the legislatures were able to draw districts that ensure that their respective received a number seats disproportionate to the state wide vote.

“Is that how American democracy is supposed to work?” Kagan said. “I have yet to meet the person who thinks so.”

“Free and fair and periodic elections are the key” to the framers’ vision of democracy, Kagan said.

“And partisan gerrymandering can make [elections] meaningless,” Kagan said. “At its most extreme — as in North Carolina and Maryland — the practice amounts to ‘rigging elections.'”

She noted that majority did not dispute that partisan gerrymandering allows “politicians” to “cherry-pick voters to ensure their reelection.”

She said that one solution the conservative majority offered — that legislatures will curb their own gerrymandering — was “so dubious on its face that I feel secure in delaying my answer for some time. ”

And the other solution the majority offered, she said, was that it “seems to be that if we have lived with partisan gerrymanders so long, we will survive. ”

She countered that technology has allowed for gerrymandering that is “far more effective and durable than before, insulating politicians against all but the most titanic shifts in the political tides. ”

“These are not your grandfather’s — let alone the Framers’ — gerrymanders,” she said.

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