“The court has kind of blinded itself to the very deleterious effect of their rulings on how the political system works,” Kagan said while speaking to students and faculty at Catholic University’s law school in Washington, D.C., on Tuesday.
Kagan—who was nominated to the bench in 2010 by President Barack Obama—referenced specific rulings that have had a large impact on electoral maps, campaign finance, and executive authority. Experts tell TIME that these rulings have affected the midterm elections and could, in turn, change the fate of Congress.
“It's no exaggeration to say that the form of our elections and democracy owes a great deal to the decisions of the Supreme Court, sometimes overruling the will of Congress,” says Rick Hasen, a professor at the University of California, Los Angeles law school and the director of its Safeguarding Democracy Project.
“You're going to hear more voices calling for the Supreme Court to be changed, either by adding more justices, putting in term limits, or doing other things,” he says.
Kagan’s comments outline how the high court’s rulings have impacted this year’s elections.
Following the decision, many Republican-led states proposed redrawn voting maps that favored their candidates and weakened Black voters’ electoral influence.
Hasen says that Americans are already facing the fallout. He pointed to Louisiana and Alabama, each of which eliminated a district where Black voters could elect their candidates of choice.
Kagan also mentioned a 2019 decision in Rucho v. Common Cause that prevents federal courts from blocking electoral maps on the grounds that they unfairly favor one party. States including Texas, North Carolina, Ohio, and Florida have since adopted new congressional maps that could help Republicans win additional House seats in November.
She added that these redrawn maps are “very destructive to our democracy.”
How campaign finance rules may come into play ahead of Election Day
“The people of America look around this political system and think that all this money chasing all these political candidates is a nightmare, and they’re right,” Kagan said.
Her comments come amid what is projected to be the most expensive election cycle in history.
Supreme Court rulings have also influenced the scope of presidential power.
“The danger is it allows the president to ride roughshod over all the institutions of government,” Kagan said.
Furthermore, Huq says, it expands “the scope of presidential directive authority over subordinates.”
What Congress can do to check the Supreme Court
Even if Democrats regain control of Congress in November, Trump could veto legislation seeking to counteract the court’s decisions. Overriding him would require two-thirds support in both chambers.
There are measures Congress and states can take in the meantime, he continues, saying that Congress has the ability to enact a nationwide law that would restrict partisan gerrymandering of House maps.
“As noted, the Framers gave Congress the power to do something about partisan gerrymandering in the Elections Clause,” Roberts wrote, referring to the 55 delegates who in 1787 met to draft the U.S. Constitution. “That avenue … remains open.”
But any new legislation could face a legal challenge, leaving the Supreme Court to decide whether it can stand.
Complicating matters, Huq says, is that legislative reforms could ultimately come before the Supreme Court, whose methods of interpreting the law leave the justices largely unconstrained in reaching their preferred outcomes.
“Almost all of these proposals are going to fail because the court will strike them down or find ways to undermine them,” Huq says. “We're at a very difficult and perilous point.”
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