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Ahead of Midterms, Elena Kagan Says the Supreme Court Is Undermining Voting Rights
Liberal Justice Elena Kagan has accused the Supreme Court’s conservative majority of undermining democracy and creating a more polarized electorate through a series of key rulings that have affected the nature of elections ahead of the midterms.
“The court has kind of blinded itself to the very deleterious effect of their rulings on how the political system works,” Kagan said while speaking to students and faculty at Catholic University’s law school in Washington, D.C., on Tuesday.
She went on to say that the conservative justices have “created a democracy that does not work as well as it should.”
Kagan—who was nominated to the bench in 2010 by President Barack Obama—referenced specific rulings that have had a large impact on electoral maps, campaign finance, and executive authority. Experts tell TIME that these rulings have affected the midterm elections and could, in turn, change the fate of Congress.
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“It's no exaggeration to say that the form of our elections and democracy owes a great deal to the decisions of the Supreme Court, sometimes overruling the will of Congress,” says Rick Hasen, a professor at the University of California, Los Angeles law school and the director of its Safeguarding Democracy Project.
In fact, he believes Kagan’s remarks do not go far enough in their criticism.
“You're going to hear more voices calling for the Supreme Court to be changed, either by adding more justices, putting in term limits, or doing other things,” he says.
The outcome of the midterm elections might have some influence on these issues going forward, though there are limits to what Congress can accomplish regardless of who controls the majority in the years ahead.
How Supreme Court rulings may affect the 2026 midterms
Kagan’s comments outline how the high court’s rulings have impacted this year’s elections.
She pointed to Louisiana v. Callais, which concerned whether Louisiana had to draw a second congressional district where Black voters made up a majority—giving them a greater chance to elect their preferred candidate. In April, the Supreme Court struck down that map and made it harder to challenge maps that weaken minority voters’ influence. Kagan called the ruling an “evisceration” of the 1965 Voting Rights Act.
Following the decision, many Republican-led states proposed redrawn voting maps that favored their candidates and weakened Black voters’ electoral influence.
Read More: Supreme Court Ruling Weakens Major Provision of Voting Rights Act
Hasen says that Americans are already facing the fallout. He pointed to Louisiana and Alabama, each of which eliminated a district where Black voters could elect their candidates of choice.
“We'll see much more of that in the next few election cycles,” Hasen predicts, calling the decision “the worst election law decision in 100 years at the Supreme Court.”
Kagan also mentioned a 2019 decision in Rucho v. Common Cause that prevents federal courts from blocking electoral maps on the grounds that they unfairly favor one party. States including Texas, North Carolina, Ohio, and Florida have since adopted new congressional maps that could help Republicans win additional House seats in November.
This gerrymandering, Kagan said, strips people of “their rights to voting equality” and has resulted in “driving people away from the center, toward the wings, toward the extremes.” The outcome, she said, is contributing toward what’s already a “too-polarized country.”
She added that these redrawn maps are “very destructive to our democracy.”
How campaign finance rules may come into play ahead of Election Day
In her speech, Kagan also highlighted the role that money increasingly plays in politics.
“The people of America look around this political system and think that all this money chasing all these political candidates is a nightmare, and they’re right,” Kagan said.
A 6-3 ruling split along ideological lines from June in National Republican Senatorial Committee v. FEC removed limits on how much political parties can spend in coordination with their candidates, including on television advertisements.
Her comments come amid what is projected to be the most expensive election cycle in history.
Billionaires have poured hundreds of millions into super political action committees (super PACs) for campaign ads—chiefly supporting Republican candidates in tight Senate races.
How the court has expanded presidential powers
Supreme Court rulings have also influenced the scope of presidential power.
Kagan also criticized the court’s decision in Trump v. Slaughter. In June, justices struck down protections against firing Federal Trade Commission commissioners without cause, expanding presidential control over independent agencies.
“The danger is it allows the president to ride roughshod over all the institutions of government,” Kagan said.
Aziz Huq, a professor at the University of Chicago law school and a co-author of How to Save a Constitutional Democracy, tells TIME that “the misuse or the use of prosecutorial discretion at the direction of the president against political foes … flows from the court’s ruling” in Slaughter.
Furthermore, Huq says, it expands “the scope of presidential directive authority over subordinates.”
Huq pointed to the Trump Administration’s investigation into Somali-born Democratic Rep. Ilhan Omar of Minnesota as an example of how greater presidential control over executive officials can be used against political opponents.
What Congress can do to check the Supreme Court
Even if Democrats regain control of Congress in November, Trump could veto legislation seeking to counteract the court’s decisions. Overriding him would require two-thirds support in both chambers.
As a result, Hasen says it could take until 2029 “at the earliest,” when a new president enters the White House, for there to be a counteractive response to the high court’s conservative majority.
There are measures Congress and states can take in the meantime, he continues, saying that Congress has the ability to enact a nationwide law that would restrict partisan gerrymandering of House maps.
Chief Justice John Roberts acknowledges that authority in his ruling in Rucho.
“As noted, the Framers gave Congress the power to do something about partisan gerrymandering in the Elections Clause,” Roberts wrote, referring to the 55 delegates who in 1787 met to draft the U.S. Constitution. “That avenue … remains open.”
When it comes to Callais, Hasen says lawmakers could attempt to amend the Voting Rights Act, and restore protections narrowed by the ruling, by forcing the Supreme Court “to decide some of the constitutional questions that they ducked” during the original case.
But any new legislation could face a legal challenge, leaving the Supreme Court to decide whether it can stand.
Those hoping to challenge the highest court’s composition or jurisdiction may go about that in a few ways, such as by petitioning for term limits. Proposals include limiting justices’ active service through legislation—an approach whose constitutionality is disputed—or through a constitutional amendment. Another route is to limit which cases the court can hear.
Complicating matters, Huq says, is that legislative reforms could ultimately come before the Supreme Court, whose methods of interpreting the law leave the justices largely unconstrained in reaching their preferred outcomes.
“Almost all of these proposals are going to fail because the court will strike them down or find ways to undermine them,” Huq says. “We're at a very difficult and perilous point.”
