"Worn-out rhetoric": Brett Kavanaugh attempts to rebut Elena Kagan's dissent in gerrymandering case

“Contrary to the dissent’s mistaken rhetoric, I take no position at this time on the ultimate merits"

By Meaghan Ellis

Published February 9, 2022 6:31AM (EST)

Supreme Court Justice Brett Kavanaugh (Andrew Harnik - Pool/Getty Images)
Supreme Court Justice Brett Kavanaugh (Andrew Harnik - Pool/Getty Images)

This article originally appeared on AlterNet.

US Supreme Court Justice Brett Kavanaugh, on Monday, expressed his disapproval over Justice Elena Kagan's sharp criticism of him and his conservative allies.

The conflict arose over the Court's decision Monday to halt a lower court's order requiring Alabama to redraw its congressional maps over claims it disenfranchised black voters. Per Talking Points Memo:

"The conservative majority did not explain its reasoning in Monday's order. Justice Brett Kavanaugh did write a concurring opinion, attempting to rebut Justice Elena Kagan's dissent."

In her dissent, Kagan did not mince words with her criticism of Kavanaugh, arguing that the state's attempts to defend the redistricting, which would group the majority of Black voters in one district, "seeks to 'graft onto' the Voting Rights Act 'a new requirement, lacking any foundation in our precedent.'"

Per TPM, the state claims "that if a new map to craft two Black majority districts is to be drawn, it must be drawn without taking race into account as a priority — otherwise, the state claims, it would be an illegal racial gerrymander."

However, Kavanaugh argues otherwise.

"The stay order does not make or signal any change to voting rights law," he insists. "The stay order is not a ruling on the merits, but instead simply stays the District Court's injunction pending a ruling on the merits."

Kavanaugh then pivoted to express his disapproval of the Kagan's dissent. "The principal dissent's catchy but worn-out rhetoric about the 'shadow docket' is similarly off-target," he said.

"Late judicial tinkering with election laws can lead to disruption and to unanticipated and unfair consequences for candidates, political parties, and voters, among others," Kavanaugh wrote. "It is one thing for a State on its own to toy with its election laws close to a State's elections. But it is quite another thing for a federal court to swoop in and re-do a State's election laws in the period close to an election."

He also claimed politics had no bearing on his decision.

"Contrary to the dissent's mistaken rhetoric, I take no position at this time on the ultimate merits of the parties' underlying legal dispute," he wrote. "And I need not do so until the Court receives full briefing, holds oral argument, and engages in our usual extensive internal deliberations."


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Brett Kavanaugh Elena Kagan Gerrymandering Politics Raw Story Republicans Supreme Court