Business & Practice

Kagan Says She Didn’t ‘Pull Punches’ in Gerrymandering Dissent

July 18, 2019, 10:40 PM

Justice Elena Kagan said she didn’t pull any punches in her dissent to the Supreme Court’s decision to not police partisan gerrymandering, and hopes a future court might revisit the issue.

“There is no part of me that is ever going to be accepting” of last month’s ruling, she told students during a talk at Georgetown law school July 18.

The 5-4 decision split the court along ideological lines in upholding contested congressional voting maps drawn by Maryland Democrats and North Carolina Republicans. It said policing partisanship in the redistricting process is for the political branches to do, not the judiciary.

Kagan’s voice cracked when she read from her dissent from the bench—a rare occurrence for the justices, but especially from Kagan.

She called the majority ruling “tragically wrong” and said it was “with respect but deep sadness,” that she and justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor disagreed, Bloomberg reported.

“I didn’t pull my punches,” she said.

Kagan said she hopes a future court will reconsider the 5-4 ruling, but noted that the bar for overturning cases in general should be pretty high.

There has to be “reasons beyond ordinary wrongness,” she said. Something like “super wrongness,” she added.

Not only do lawyers depend on predictable legal rules, but society as a while relies on the legal system being stable, she said.

The worst thing someone could think about the court is that when one person leaves the bench, “everything is up for grabs,” she said.

—With Greg Stohr (Bloomberg)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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