“For the first time ever,” Justice Elena Kagan declared on June 27, “this court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.”
Kagan was reading a summary of her dissent in Rucho v. Common Cause, a 5–4 decision that barred federal courts from hearing partisan gerrymandering claims. Chief Justice John Roberts had just wrapped up his majority opinion, delivered during the dramatic last session of the term. Justices rarely read dissents from the bench, and typically reserve the practice for decisions that they view to be catastrophically misguided. Now, for the first time, you can hear her deliver her historic dissent. Slate obtained the recording from the National Archives. It is deeply compelling and, for the stoic justice, remarkably impassioned. At first, her voice is filled with righteous fury, but it soon shifts into profound sorrow as she nears the end.
For 13 minutes, Kagan decried her conservative colleagues’ decision to withdraw the federal judiciary from political redistricting. “These gerrymanders dishonored our democracy,” she proclaimed. “Left unchecked, as the court does today, gerrymanders like these may irreparably damage our system of government.”
Her voice wavers as she delivers the final line: “With respect, but deep sadness, Justices Ginsburg, Breyer, Sotomayor, and I dissent.”
It was only the third dissent that Kagan had read from the bench since her confirmation in 2010. All three involve threats to the democratic process, a danger that the justice takes quite seriously. The first dissent she delivered from the bench, in 2011’s Arizona Free Enterprise Club’s Freedom PAC v. Bennett, also involved corruption of the electoral process. Arizona voters passed an initiative that provided publicly financed candidates roughly the same amount of money donated to privately financed candidates. The Supreme Court ruled that the law unconstitutionally “penalizes speech” by punishing private donors. Reading from the bench, Kagan demolished the majority’s reasoning.
“All the law does is fund more speech,” she said. “It is our law and our tradition that more speech, not less, is the governing rule.” She ended with a sharp retort to the majority: “Arizonans deserve better. Like citizens across this country, Arizonans deserve a government that represents and serves them all. And Arizonans deserve the chance to reform their electoral system to achieve this most American of goals.”
Kagan’s second dissent from the bench came in 2018’s Janus v. AFSCME, which invalidated mandatory “fair share” fees. In 22 states, the District of Columbia, and Puerto Rico, public sector employees had to pay these fees to cover the cost of collective bargaining, whether or not they joined the union. The conservative justices ruled that compulsory fees violated the First Amendment. In her dissent, Kagan criticized her colleagues for deciding to “pick the winning side in what should be and until now has been an energetic policy debate.”
“Yesterday, 22 states were on one side, 28 the other,” she said. “Today, that healthy, that democratic debate ends.” The First Amendment, she added, “was meant not to undermine, but to protect democratic governance.”
Kagan’s Rucho dissent picks up on this earlier theme: The court betrays the Constitution when it limits the people’s ability to govern themselves. And by ignoring the injury that partisan gerrymandering inflicts on self-governance, the court betrayed its duty to protect democracy. “If there’s a single idea that made our nation,” Kagan said, “it’s this one: The people are sovereign. … The people get to choose their representatives. And then they get to decide whether to keep them. Election Day is what links to the people to their representatives and gives the people their sovereign power. That day is the foundation of democratic governance. And partisan gerrymandering can make it meaningless.” She concluded:
Of all times to abandon the court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the court’s role in that system is to defend its foundations. None is more important than free and fair elections.
This dissent is classic Kagan: forceful but accessible, eloquent but unflashy, expressing not just outrage but acute disappointment over the majority’s grave error. At an event in July, Kagan explained why she delivered such a razor-sharp dissent. “You’re not writing the dissent because you saw the thing differently and you think everybody should know there were two sides to this issue,” she said. “You’re writing a dissent because you want to convince the future—and I guess you want to convince the present too.”
She has already persuaded one court that she had the better argument. Less than three months later, a North Carolina court struck down the state’s legislative gerrymander—drawing upon Kagan’s reasoning in Rucho. (State courts remain free to block partisan gerrymanders under state constitutions.) Maybe a future Supreme Court will revisit this issue and decide that Kagan had the better argument, reviving challenges to partisan gerrymandering under the U.S. Constitution. Until that day comes, her Rucho dissent will stand as one of the most eloquent defense of representative democracy ever delivered by a Supreme Court justice.