Wednesday, October 21, 2026
Ahead of Midterms, Justice Kagan Says Rulings Have Intensified Polarization - The New York Times
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Ahead of Midterms, Justice Kagan Says Rulings Have Intensified Polarization
The justice said during a discussion that recent Supreme Court decisions on voting rights, gerrymandering and campaign finance have deepened America’s divides.
Justice Elena Kagan on Tuesday criticized the Supreme Court’s conservative majority for a series of election-related decisions in recent years that she said have led to more polarization and a dysfunctional democracy.
Justice Kagan, one of the court’s three liberals, delivered the sharp critique two weeks before hotly contested midterm elections and in front of an ideologically mixed crowd of law students and professors. In a wide-ranging discussion, she pointed to the court’s rulings that have loosened restrictions on campaign funding, cleared the way for partisan voting maps and undermined landmark voting rights protections.
“In all these areas, 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.”
The justice’s remarks came during a conversation at Catholic University’s law school with Prof. J. Joel Alicea, who was a law clerk to Justice Samuel A. Alito Jr., a conservative.
While Justice Kagan has issued strongly worded dissents in individual election-related cases, her remarks on Tuesday amounted to a global critique of how a series of choices by the court’s majority have affected democracy in the United States. Taken together, she said, the rulings have deepened political divisions and made the country’s electoral system work less well.
Justice Kagan wrote the dissent, for instance, when the court in 2019 closed the door on federal litigation challenging voting maps aimed at achieving political ends. As a result, she said, “both political parties have been engaged in a race to the bottom” to draw voting maps that advantage either Democrats or Republicans in a way that “is very destructive of our democracy.”
Similarly, she said the court’s decisions to ease campaign finance rules have left loopholes that have allowed a massive infusion of political contributions into elections.
“The people of America look around this political system and think that all this money chasing all these political candidates is a nightmare,” she said. “And they’re right.”
Justice Kagan spoke as the court’s new term has begun and ahead of midterm contests that will determine control of Congress, and could require the Supreme Court to intervene in post-election challenges. Election-related litigation has already been filed across the country, with both political parties anticipating the possibility of voter intimidation and the seizure of ballots.
In the coming months, the justices will also hear arguments in high-profile cases involving the legality of bans on semiautomatic rifles, religious rights and President Trump’s aggressive crackdown on illegal immigration.
Even as the court has moved to the right with the addition of three justices nominated by Mr. Trump, Justice Kagan, a nominee of President Barack Obama, has at times found compromise with her colleagues selected by Republican presidents.
Before joining the bench in 2010, she was the dean of Harvard Law School, where she was known for building coalitions and recruiting conservative faculty members.
On Tuesday, Justice Kagan was the first justice who was nominated by a Democratic president and is a non-Catholic to take part in the annual event sponsored by the Center for the Constitution and the Catholic Intellectual Tradition. She is the fifth justice to participate.
She went over the allotted hour for the event and seemed eager to offer a polite takedown of originalism, the theory embraced by conservative justices that the Constitution should be interpreted based on its public meaning at the time it was adopted.
“They were writing the Constitution for the ages. They were writing the Constitution, knowing that there would be change in the world,” she said.
“The whole project” of originalism, she added, “is kind of misconceived, and it’s not a very good match with the Constitution we have.”
Even as Justice Kagan faulted the conservative majority for not considering the consequences of its election-related rulings, she reiterated her defense of the conservative-dominated bench from a July appearance and said it was a “bum rap” to suggest the court had been too deferential to Mr. Trump.
In the court’s term that wrapped up in late June, the justices delivered long-sought conservative wins that expanded presidential power over immigration and the federal bureaucracy, in addition to dealing a blow to the Voting Rights Act of 1965, a landmark civil rights law.
But the court, including justices nominated by Mr. Trump, also rejected some of his marquee policies. The court struck down the president’s tariffs, blocked his order to end the guarantee of birthright citizenship for the U.S.-born babies of undocumented immigrants and prevented him from immediately firing a leader of the Federal Reserve.
Recent polls have shown declining public opinion of the Supreme Court with a majority of Americans saying the justices are motivated mainly by politics rather than law, according to a September survey conducted by Marquette University Law School. Those unfavorable views come as Democratic officials and candidates are increasingly calling for structural changes to the court should the party win control of Congress.
Justice Kagan said the court she joined 16 years ago was more balanced and held in higher esteem by the public in part because it was less predictable. She pointed to the period after Justice Antonin Scalia died in 2016 when she said the justices had to compromise, listen and issue narrow rulings to try to avoid being deadlocked 4 to 4.
“There was a period of time where the court was in a better place and the country was in a better place because the court was more balanced and it was unclear whether the court could push through anybody’s program.”
“Nobody in America thought that the court was in the pocket of any one group or any one party,” she said, “and the court had a kind of legitimacy.”
Ann E. Marimow covers the Supreme Court for The Times from Washington."
Opinion | The Hunting of Ilhan Omar - The New York Times
The Hunting of Ilhan Omar
"You can understand the Trump administration as, in its essence, a cargo cult devoted to the illiberal tradition in American politics.
At every turn, it seeks to instantiate a society where, as the historian Steven Hahn writes, “rights-bearing may be defined or limited by specific rulers or be based on communities of race, ethnicity, religion, and gender” and where “civil and political standing tend to be marked by social and cultural exclusions.” To this end, it uses power “in its most naked and aggressive forms,” including outright violence.
What makes this a cargo cult is the extent to which the administration is preoccupied with summoning the image of a consolidated authoritarian state, versus taking the concrete steps needed to unravel liberal democracy as such. It is less concerned with passing laws than it is with projecting an image of dominance over civil society, whether or not there is a durable settlement. It does this through dramatic action whose central purpose is to menace, threaten and otherwise send a message.
The Department of Homeland Security’s recent raid on the Washington home of Representative Ilhan Omar of Minnesota is a striking example of all of the above. The pretext of the raid is immigration enforcement. The White House asserts that Omar obtained her citizenship under false pretenses after she arrived to the United States from Somalia as a child, brought over by her father, who filed the required paperwork.
The specific charge is that Omar was listed as being 17 — and thus eligible for automatic citizenship through her father — when she was actually 18 and a legal adult who would have to obtain citizenship on her own. The raid was a fishing expedition — an attempt to build a case, any case, using materials seized from her home, including her cellphone, notebooks, personal computers and her passport. The goal appears to be to denaturalize Omar and then remove her from the country as an “illegal alien.” As the so-called border czar Tom Homan told Fox News on Saturday, “If you lie during the naturalization process, there is a process to denaturalize somebody. We’ve done it before … and certainly, if the evidence points that way, that could happen.”
Both the charge and the case are obvious nonsense. There is no evidence that Omar lied or otherwise misled the federal government to obtain citizenship. The idea itself comes from the fetid swamps of the online far right — an expression of the anti-Somali bigotry that President Trump has elevated to the equivalent of state ideology. And in turn, the government’s hunt for evidence to wield against Omar is less about combating fraud and more about the president’s racist crusade against Somali Americans as well as his specific disdain for Omar, a vocal (and visible) political opponent of his administration.
It is because the investigation seems likely to fail on the merits — and appears to be nothing more than an attempt to intimidate a political opponent — that the spectacle carries the flavor of cargo cult activity. And yet, it still represents a shocking escalation of the president’s reactionary dominance politics, as well as an assault on a set of basic constitutional guarantees.
The White House seeks to punish Ilhan Omar for exercising her right to free speech. It seeks to curtail Representative Omar’s privileges and immunities under the Constitution’s Speech and Debate clause, which holds that “for any Speech or Debate in either House,” both senators and representatives “shall not be questioned in any other Place.” It also hopes to arrogate the Constitution’s declaration that “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members” so that it can shape the composition of Congress itself.
One striking aspect of the second Trump administration worth noting is the extent to which the president keeps reinventing Stuart absolutism from first principles. Here, the president is all but re-enacting Charles I’s attempt to arrest his five most vocal opponents in the House of Commons in order to force the body into submission.
It shoul"ng, focused its scrutiny on those immigrants who were a thorn in its side, like Goldman.
Goldman’s citizenship came through her former husband, Jacob Kershner, a fellow immigrant and naturalized citizen. But a handful of minor mistakes in his journey to citizenship were grounds to denaturalize him and, more important to federal officials, void Goldman’s claim to citizenship. She was arrested in 1917 for agitating against American involvement in the First World War, in violation of the Espionage Act. A young J. Edgar Hoover, then leading the government’s crusade against radicals, traveled to New York City to witness her deportation.
Most Americans who know this history look back at these episodes with shame and regret. Not so the Trump administration and its allies. For them these moments of authoritarian abuse — when the federal government used its power to target opponents, harass dissidents and hunt disfavored groups — are proof of concept.
The White House seems to think that if it goes through the motions of repression, it can get the same results. Hence the cargo cult quality of its actions here and in other arenas. Not only is there broad and deeply felt opposition to the administration’s attempts to persecute and ostracize its critics but there is little about the politics of the moment that favor the White House and its allies. The president, after all, is more unpopular than he has ever been.
If the Trump administration has one trick, it’s this: to abuse its power in increasingly draconian and autocratic ways, in the hope that it will establish the authoritarian dominance it tried to project. It is terribly destructive. It also doesn’t work. Looking at the growing odds of a Republican electoral catastrophe in November, I don’t think it will.
But if we can be certain of anything, it’s this: They won’t stop trying.
Jamelle Bouie became a New York Times Opinion columnist in 2019. Before that he was the chief political correspondent for Slate magazine. He is based in Charlottesville, Va."
Tuesday, October 20, 2026
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