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This past week, Justice Elena Kagan gave a speech at Catholic University law school in D.C., warning the American public and her colleagues about the ways that the Supreme Court itself is undermining democratic governance. The speech was noteworthy in its unvarnished language about an American public that has lost confidence in her court, for good reason. On this week’s Amicus bonus episode, Dahlia Lithwick discussed the nature of Kagan’s concerns with Madiba K. Dennie, the deputy editor and senior contributor at the legal commentary outlet, Balls and Strikes, and author of The Originalism Trap. Their conversation has been edited and condensed for clarity.
Dahlia Lithwick: Justice Kagan is almost the most careful of all the sitting justices not to say anything polemical, or partisan, or inflammatory. Yes, she can throw down in a dissent, but she’s very careful in her speeches. She doesn’t say things unless she very much intends to say them, and she absolutely went there on this topic of a politicized Supreme Court. It’s worth noting and she did so just a couple of weeks before the midterms. That certainly suggests that she is thinking of this time as a kind of break-the-glass moment for voting rights, for democracy, and maybe more profoundly, for an American public that is losing confidence in the high court. She said the American people “look around this political system and think that all this money chasing all these political candidates is a nightmare … and they’re right.” She’s not just saying the court is putting a thumb on the scale to warp voting rights—that’s the gravamen of the speech—she’s also saying the American people are not fooled that this is a neutral policy.
Video from Slate
Madiba Dennie: She’s saying the court is making everything worse, and people can see that. People can recognize that it’s distorting democracy in favor of one political party. But beyond that, it’s distorting democracy in favor of big money. Justice Kagan is saying we have this system now that is just flush with cash from who knows where, and it is hard for regular people to find information, to make their voice heard, to have a working relationship with the person who was supposed to be representing them in office because those people are beholden to special interests.
And these are all things the court has made possible by getting rid of campaign finance laws, by allowing all sorts of gerrymandering to happen, by making it harder and harder to prove political corruption. So basically, the court is taking a series of actions that make it so democracy can’t work.
And she is acknowledging that. We so rarely see people in places like the Supreme Court acknowledge that these are affirmatively bad decisions that are worsening democracy for the overwhelming majority of people. It was a surprising moment to see a sitting Supreme Court justice admit that outright.
It’s also a way of saying your vote matters. It’s a way of saying, “I know that you all think the system is cooked, and I see you seeing that the court is cooking it.” And also, get out there and fight for democracy. With the full understanding that the court is constricting the vote, that your vote matters more than ever.
Because people have to vote in order to have a Congress that can pursue court reform.
The timing isn’t an accident. I want to give you a chance to take a whack at originalism, because I know that she took a whack at originalism, and taking whacks at originalism is your love language. Justice Kagan said, “They were writing the Constitution for the ages. They were writing the Constitution knowing that there would be change in the world. … The whole project of originalism is kind of misconceived, and it’s not a very good match with the Constitution we have.”
There are a few things that jump out at me about that statement. One, she is acknowledging that originalism is a project, that it is a thing that the conservative legal movement developed that has goals they want to achieve. Originalism is so often treated as this neutral, objective, totally legitimate theory, so seeing it discussed as a “project” is something that pleases me. Also, the acknowledgment that that project is in conflict with the Constitution, with the way democracy is supposed to work. The Constitution is supposed to be a lasting, living document that continues to serve the people who are alive. In his new book, Justice Samuel Alito describes how he sometimes wonders what the Bill of Rights might have meant to the average patron “at one of the colonial-era taverns”—you don’t even have to leave out the tavern people entirely, but just maybe, you know, think about the rest of us too, perhaps.
Secondly, Justice Kagan is acknowledging the disconnect between that project and actually serving people today in a modern multiracial democracy. And she is saying all this straight up, actually plainly saying it out loud. These are things that I feel would have been, if not third rail, at least second rail and off-limits not too long ago.
It’s a shift that we now have Kagan saying that there’s a mismatch between originalism and the Constitution, when a few years ago she was saying (somewhat sarcastically) originalism was so prominent that “I guess we’re all originalists now.” It’s a huge shift in the Overton window to move from that, to saying that originalism and the Constitution are inherently in conflict.
I think about Hillary Clinton, of all people, saying we need to have 13 justices the other day. These are things that were too spicy for stodgy liberal types just a few years ago, and now we have Hillary Clinton saying we need to have court expansion.
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. 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.
As you very well know, Dahlia, I have been trying to have this conversation with anyone who would listen for years. But if folks are ready to have it now, I am very happy to have it.
And there’s pure Elena Kagan jujitsu going on here. As you say, she takes it head-on. She’s saying that not only is the original intent of the Constitution not originalism, and the original intent of the Framers is not originalism, but it is not even originalist to think of originalism as the only way to proceed. She’s so smart. Big heart eyes for you, EMK.