In a speech before students and professors at Catholic University's law school in Washington, D.C., Tuesday, two weeks before the midterm elections, the liberal-leaning justice warned that rulings weakening voting rights, expanding campaign finance and allowing partisan gerrymandering are fueling political division, undermining democracy and intensifying political polarization
"The court has kind of blinded itself to the very deleterious effect of their rulings on how the political system works and has created a democracy that does not work as well as it should," she said.
"Over the last couple of years especially, both political parties have been engaged in a race to the bottom in terms of doing these partisan gerrymanders, … making what I think is unfortunately a too-polarized country even more so," Kagan continued. "The people of America look around and think that all this money chasing all these political candidates is a nightmare, and they're right."
John Malcolm, vice president of the Edwin Meese III Institute for the Rule of Law at Advancing American Freedom (AAF), points out that the Supreme Court routinely handles "contentious issues that the public cares about a lot."
In every case, "one side wins and another side loses, and so the side that loses is going to be very upset," he says.
Malcolm says the high court's duty is to interpret the law and the Constitution, not to play political favorites. He points to the court's 2019 decision on political gerrymandering as an example of the court adhering to constitutional limits.
Although Kagan criticized rulings that weakened the Voting Rights Act and campaign finance regulations while allowing more partisan gerrymandering — decisions from which she dissented — she noted decisions against President Donald Trump involving tariffs, birthright citizenship and mail ballots to acknowledge that the Court does not always rule in favor of conservatives.
Still, Malcolm says her sharp public criticism crosses a line.
"Saying that they undermine democracy is not only hyperbolic, but it does great damage to the Court's reputation," he says. "I think that that's something that she and the other justices ought to be concerned about."
Kagan, 66, has served on the Supreme Court for more than 16 years. Nominated by President Barack Obama and confirmed by the Democrat-controlled Senate amid public concern about her sexual orientation, she took office Aug. 7, 2010, becoming the fourth woman to serve on the high court.
Under Article III of the U.S. Constitution, justices hold office during "good Behaviour," generally allowing them to serve for life unless they resign, retire, die in office or are impeached and removed.
Speculation about potential Supreme Court retirements has focused more heavily on Justices Samuel Alito, 76, and Clarence Thomas, 77, than on Kagan. Conservatives currently hold a 6-3 majority, and the retirement of a conservative justice could give Trump another opportunity to influence the court's direction for decades.
Meanwhile, Democrats are pursuing a separate effort to expand the court. Rep. Al Green, D-Texas, who lost the Democratic primary runoff in May 2026 for the redrawn 18th Congressional District, introduced legislation to increase the court's membership from nine to 13 justices — a move that could shift its ideological balance.
Shortly after Green introduced his bill earlier this year, House Republicans advanced a proposed constitutional amendment to limit the court to nine justices.
Neither proposal became law.
