A Day of Sorrow for American Democracy

The usual form for a justice who disagrees, no matter how fundamentally, with a decision of the Supreme Court is to end the opinion with the formula “I respectfully dissent.” Justice Antonin Scalia, in particularly high dudgeon, would sometimes drop the adverb. Last week, though, Justice Elena Kagan, writing for the four justices who disagreed with Chief Justice John Roberts’s opinion purporting to withdraw the Court once and for all from passing judgment on the constitutionality of partisan gerrymanders, ended thus:

Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent.

Kagan’s occasion for sorrow is deep not only because the