Is the Supreme Court’s Fate in Elena Kagan’s Hands?

The New Yorker

Paul Smith, an attorney who has argued many times before the Supreme Court, including in a previous partisan-gerrymandering case, Gill v. Whitford, told me that the random-map-generating test that Kagan proposed in her dissent offers “a nice, clean way to think about the problem.” Paul Smith told me that Kagan seemed to respect Ely’s “argument that, even if you’re dubious about having unelected judges run the country, the one place where judges ought to be most aggressive is to protect the democracy itself—it doesn’t make sense to hold back in favor of democratic institutions if the democratic institutions are being distorted by things that need to be fixed.” Smith said that he could see Ely’s influence on Kagan’s opinions, especially “in the campaign-finance area,” and observed, “I think she is a person who believes the Court is doing its best for the country when it keeps the democratic process working.”

Read the full article here.