Justice Elena Kagan’s Gerrymandering Fix Is to Put Judges in Charge

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0:31From the opinion pages of The Wall Street Journal, this is Potomac Watch. Justice Elena Kagan says the Supreme Court has undermined American democracy, pointing to this year's gerrymandering on both the left and right. Plus, another Republican senator says his plan for showing up Social Security is a massive tax increase on workers. Welcome, I'm Kyle Peterson with The Wall Street Journal. We're joined today by my colleagues on the WSJ's opinion pages, columnists Kim Strassel and Joe Sternberg. Two weeks from the 2026 midterm elections, Republicans are bracing for what looks like it could be a tough night with the GOP losing probably control of the House and potentially even the Senate.

1:16Yeah, Justice Elena Kagan is choosing this moment to go after the majority on the Supreme Court for what she sees as enabling this year's gerrymandering of many of those House districts. Here's Justice Kagan speaking at an event this week at Catholic University Law School in Washington, D.C. I think in the gerrymandering case, the court, you know, says, oh, well, you know, this can be done by others. The court doesn't have to do it. It has its own self-regulatory devices. I think that that's just been proved wrong, as we've seen over the last couple of years, especially where both political parties have been engaged in a race to the bottom in terms of doing these partisan gerrymanders, effectively depriving masses of citizens of their rights to voting equality, driving people away from the center, you know, towards the wings, towards the extremes, because the only thing anybody has to worry about anymore is being primaried.

2:23So I do think that in all these areas, the court has kind of blinded itself to the very deleterious effects of their rulings on how the political system works and has created a democracy that does not work as well as it should. Kim, as it happens, your column on Friday is about this year's gerrymandering under the headline about those GOP gerrymanders. So to start, how do you size up the efforts begun, One kicked off by President Trump's calls for Texas to gerrymander its House seats, then answered by California, other states getting in. How do you size up the effects that those will have on the balance of power after these midterms, potentially?

3:10Well, as we all know, because we all watched it, the Republicans did kick up the most recent round of gerrymandering. And I say that because I think it's important to note that Democrats had severely gerrymandered a number of blue states well before this kind of most recent mid-cycle redistricting. So Massachusetts, there isn't even a single Republican member of that delegation. Illinois, California, you can go through the list. But the GOP kicked off this one with, you know, gerrymanders in Texas. California responded pretty much kind of wiping out those five GOP gains with five Democratic gains.

3:49But then the Republicans went further. They gerrymandered in Alabama, Louisiana, Tennessee, Ohio, Florida, North Carolina. And what we're seeing right now is this is going to prove to be very beneficial to them in this election. And throw aside all of these press reports right now that you see or say, oh, you know, their redistricting gambit faltered. It failed. It's not working out for them. That's only by a straw man standard. The standard being, well, is it going to keep them the House? Probably not. Are they going to capture every new district they carved out? Probably not. But is this making things much harder for Democrats and insulating Republicans from an even bigger thrashing and what is proving to be a bad year for them?

4:35Absolutely. You can see that in the straight numbers and you can see it in the amount of money that they are forcing Democrats to spend to defend candidates that they were not banking on having to defend. But a couple of thoughts. I mean, I tend to agree with the position that Justice Kagan was arguing against, that there is a self-limiting quality to gerrymandering, Joe. And I say that for a couple of reasons. One is that gerrymanders cannot create new voters. They can only spread around the voters of the party in power. And if you do that too thin, you end up in places where you could have a backfire, a dummy mander, it's sometimes called, where you, you know, you think you're banking on just to pick one voter group, maintaining Republican support among Hispanics, the gains that President Trump made in 2024 among that voter group.

5:24And so if you bank on that and you think you're going to pick up a few seats based on that support, if you get wiped out, if that support changes in the next election, the gerrymanderers can draw district lines that end up not working the way they had hoped. But also there are still overall voter sentiment that I think changes quite a bit between elections. And we see that now the vibe shift, one way to put it, between the 2020 election and where we stand here today, a couple of weeks before 2026. The gerrymandering, I think, can help at the margins. It can put a few points on the board in states where the party in power wants to do it.

5:59But all of that can get just overwhelmed, I think, by changes in the issues, changes in the voter groups. That's what happens here. If we get a Democratic control of the House, maybe the Republican losses will not be what they would have been had President Trump not urged this gerrymandering in Texas and these other states. But still, control of the House is not going to depend on the gerrymanders. It's going to depend on voters and whether they want to check on the Trump administration or whether they want to give Republicans two more years in power. Look, you can understand why this procedure is appealing for politicians and parties, because if you have the option, why wouldn't you want to choose your own voters?

6:39And you also have to understand that a lot of this is going to end up being more art than science. I mean, there are some methods of drawing district lines that you produce districts that are more geographically comprehensible or sensible when you look at a map or districts that are more prone to swinging from one party to the other as general sentiment changes. But at the end of the day, there is a lot of art here and not as much science as people would like to claim, which is actually a good reason for this to remain in the democratic sphere instead of in the judiciary. You know, keep it where there is some degree of accountability here.

7:17But I mean, I agree with your point that, you know, there is a limit to how much parties can get out of this because it can, you know, in some ways create relatively stable legislative majorities for parties in some circumstances. If you have a notoriously all of these districts in the House that are often not competitive because of the ways that the lines have been drawn. But that can backfire in the parties in the sense that it insulates them too much from the pressure of public opinion. So I think that that is an aspect of politics right now that does seem to be destabilizing this phenomenon where you go too far down that road and politicians start feeling a bit less pressure to be responsive.

8:06And then you end up in the situation where the public has swung so far against you for whatever reason that, you know, not even the gerrymander can help. Maybe you've seen it coming and maybe you haven't. And that's not necessarily a defense of the idea of these very extreme, sometimes partisan gerrymanders. It's just a recognition that there are some inherent limits to them. And Kim, one of the points that you take up also in your column is after 2026 and what's next is 2028. Some of these Republican gains this year, if the gerrymandering does allow the GOP to hold on to some extra seats, are because of states that did not go or did not successfully respond.

8:48I think of Virginia, where there was that quite tilted gerrymander that was then struck down. The decision was that the state didn't quite follow the correct process. But Virginia, under its Democratic leadership now, could gerrymander in 2028. Maryland, perhaps another state that could go. If voters don't like this and all evidence suggests that they don't, I think voters can respond to it. The difficulty of the Kagan position, to my mind, is that she seems to want the courts to handle this. And that puts judges then in the position of saying, how much is too far? What gerrymander is fair and what gerrymander is not fair?

9:23And how are judges supposed to make those decisions? When the Supreme Court majority got out of that business, they basically said, we don't have any neutral criteria that we are supposed to use. And if voters want to give courts some neutral criteria to do that, they always could. But so far, they haven't. Yeah, I mean, where do I start on how many different ways it was unfortunate that Justice Kagan did this? I mean, first of all, the timing is unfortunate. I get that we're at the beginning of a new Supreme Court term, but we're also two weeks before an election and suggesting that this current majority has somehow undermined democracy, whether she meant it to mean that or not, certainly plays into a certain election narrative, which I think is unfortunate.

10:06Also, it's one thing for members of the Supreme Court to discuss their jurisprudence, their legal disagreements, different ways of looking at the Constitution, disputes over particular issues. But when you have a justice who seems to be outright accusing the current majority of undermining and damaging democracy, that's a bit different. And then I think the last thing that's unfortunate about this, and it's what you're talking about, Kyle, is that it suggests as though this decision was made in bad faith and that obviously the only smart way to looking at this is that the only thing that's obvious in terms of making democracy better is that the nine benighted individuals on the Supreme Court should be making all of these decisions and things would be all rosy.

10:53The reality is there's a lot of people that believe very deeply and legitimately in some of these court decisions because they think it's healthy for democracy. You know, I would argue, by the way, she was complaining about the Voting Rights Act, Section 2, getting race back out of public policy where we're no longer making decisions on the basis of your race or your sex. I think that's a healthy thing for this nation. Plenty of people deeply believe in that. So this isn't a court being blind. This is a court that said, you know, for all the messiness of American democracy, and yes, it can be messy.

11:32It's still preferable to having a super Supreme Court that is like deciding on every single political map and drawing the lines themselves. And yes, it might take some time, but the long history of this country is that the American people, when given more freedom, usually come to the better decision than the technocrats or the folks that are temporarily sitting where they are. So anyway, that's my thoughts on the wisdom of Justice Kagan. Hang tight. We'll be right back in a moment. If you're an RIA, Schwab Advisor Services is the Watson to your homes. Smart, dependable, always has your back. With all the wealth services, technology, and support your firm needs, the difference is so obvious, it's Schwabvius.

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13:06Welcome back. Let's turn to another of those Senate races that might decide which party controls the upper chamber of Congress next year. That's one in Kansas where incumbent Roger Marshall is facing a stiff challenge from Adam Hamilton. Kansas, one of those states, usually Republicans probably think is in their gimme column. But recent polls, one has Roger Marshall up by a point. Another one has Hamilton up by a point. And there was a recent debate, Joe, where the point about Social Security, the coming insolvency of that entitlement program in 2032. So in the projected in the next term of this class of senators elected in November, let's listen to a bit of what they said.

13:48So first of all, yes, I would raise the cap. I don't think that I would take it away entirely, but I would raise the cap right now. Somebody is making a million dollars a year is paying the same amount in FICA tax as somebody is making 184 ,000 a year. I think most people say that's not right. We need to change that. And and what the number is, I'm not sure right now. So I would eliminate eliminate the cap altogether. As far as adjusting the age, I think there's a lot of other things we can try to exhaust first on that side. And there's four or five knobs here. And you're right. It will take a Republicans and Democrats working together.

14:18There's no easy answer because we have more people retiring than entering the workforce. Just to provide some context there, they're talking about the Social Security payroll tax that funds the program, 12.4 percent. Theoretically, half of it on the worker and half of it on the business. But all of it ultimately, I think the economists would say falls on labor. Joe, how do you size up the idea there of raising or eliminating the cap, which currently that tax comes off at about$185 ,000 of income? And also, we should clarify that the first voice that people heard there saying that he would increase that income threshold a little bit was the Democrat in the race.

14:59You know, the second voice that we heard saying that he would eliminate the cap entirely was the alleged Republican. can. So I think, you know, first, we have to set this up by pointing out that, Kyle, as you said, for this class of senators, they're going to be serving for six years. Social security reform might end up being the most consequential thing that they have to do during that six-year term. If you look at the size of this program relative to the federal budget and therefore the economy, the fiscal consequences of it, and then also the way the program's rules affect things like labor participation, saving for retirement.

15:35I mean, this is the big one. So it matters what they're saying in these debates. And I think that we are facing the point where the program will finally be technically insolvent no later than 2032. And already the battle lines that are forming around that is Democrats are doing for a tax increase. So I think that their notion that you should eliminate the cap on income that is subject to that 12.4 % payroll tax is very intuitive if you're a Democrat, particularly if you were progressive like Bernie Sanders or Elizabeth Warren, because it allows you to argue that you are going to tax the rich and higher earners in order to fill the hole of this program for the deserving elderly poor.

16:20I think that this should be a moment of caution for Republicans, though, precisely because the design of this program and its parameters are so important for the rest of the economy. And so I think the real question that this cohort of senators will have to deal with eventually is, are we going to solve Social Security's fiscal problem by increasing what would be one of the largest peacetime tax increases in America since, you know, the 40s and certainly over the past 40 years? or are we going to try to put it on a firmer footing with a series of reforms to the structure of the program, whether that's the retirement age or the way that the benefits are calculated, that potentially can have broader economic benefits in addition to making sure that the program is still going to be there for the lower income seniors who probably will continue to need it.

17:16So I think that what's distressing about this Kansas Senate race is that you have this phenomenon of a Republican who is preemptively surrendering on the tax issue and seemingly abandoning any potential leverage that Republicans might have as they sit down to negotiate on this issue with Democrats over the next six years. And if I understood him correctly there, so the Democratic candidate, the challenger, is saying that he wants to raise the cap. So currently, the payroll tax comes off at something like$185 ,000 of income, he would make that a higher number. And incumbent Senator Roger Marshall is saying, let's just eliminate the cap.

17:55Let's go all the way up. Kim, one of the challenges we've talked about that in recent weeks is it would break the idea of this as an earned program. I mean, the idea of Social Security, it's pay as you go. That's how the program actually operates. But many people have this notion of it as I'm putting the money in to Social Security. And then when I retire, I will get the benefits back out. But if there's no limit on the amount of money that you put in, and there is a limit on the benefits you come back out, I mean, I don't think that that may undermine the political support for the Social Security program in the way that it was initially the progressives who passed it were intending to shore it up.

18:34They were intentionally selling it as this kind of earned benefit in order to strengthen the political underpinnings of the program. Another problem is it would just raise, I think, the tax rates on work to very high degrees. I mean, we have a 37 percent federal top marginal income tax rate. Some states have state rates that go to 10 percent, plus another six on the employer side, which, you know, we think actually falls on labor. I mean, you're getting tax rates on work of 50 or maybe 60 percent in some of these places. I think that is an economic problem. Yeah, so it turns this program essentially into another entitlement wealth transfer.

19:15It's incredibly damaging to the economy. As you note, in some states, this could push the effective marginal income tax rate on millions of earners above 60%. But here's the other kicker that you've got to love in all this, is that even under the most optimistic scenarios out there, getting rid of the cap won't even begin to be like a little drop in the bucket to filling the entitlement funding gap. Okay. So it's a terrible idea with terrible consequences for the economy that fundamentally restructures the program and doesn't fix the problem. What could possibly go wrong? It's such a Washington idea.

19:53And the thing that's remarkable about this Marshall position is it's sort of like somebody walking up to you on the street before they've even opened their mouth or handed like pulled out a gun, you just say like, here's all your money, what else would you like me to give you like there's, there's they're leaving nothing on the table at all. Like, he didn't talk about changes to the cost of living or means testing benefits or adjustments to the retirement. I mean, I guess he did touch on the retirement age there too. But he had no actually he kind of took that off the table as well. So what exactly are we to do.

20:25And I just want to add one final thing. I'm old enough to remember the George W. Bush debate over actually privatizing a portion of Social Security. Where are the Republicans out there actually talking about that? Every idea I just mentioned here is like a painful, you know, ugly tradeoff situation versus one where we were using the market to grow and creating a better system in which people are, you know, saving for themselves rather than paying for, you know, past generations, the Republican Party really needs to just go on a retreat and think about this and discover some nerve and backbone.

21:02Maybe they should go back to the budget tables and do some reading up on them. Hang tight. We'll be right back after one more break. You're either all in on this model or maybe you're building with another. You're either speed or is it security? You're either custom or are you ready to use? Or you're AWS AI. With hundreds of models, ready-to-use agents, speed and security built in, you don't have to pick a side. You can have them all. How will AI revolutionize your business? AWSAI is how. Don't forget, you can reach the latest episode of Potomac Watch anytime. Just ask your smart speaker. Play the Opinion Potomac Watch podcast.

21:52From the opinion pages of The Wall Street Journal, this is Potomac Watch. Welcome back. The numbers suggest that what we have in Washington is not a taxing problem, it's a spending problem. If you look at the Congressional Budget Office tables, the historical average of taxes raised is somewhere around 17 % of GDP. And, you know, in the last year, we have taxes raised of something about 17 % of GDP. The issue is that we're spending far more than that, like 23 % of GDP. And so that is how you get the situation where you end up with $2 trillion deficits. As the close of the fiscal year on September 30, we now have confirmations from the budget officers and the Treasury Department that the fiscal 2025 ended with a $2 trillion deficit.

22:43And remarkably, I mean, that has come up some in these Senate debates, but not a whole lot. You'd think, given the size of the fiscal problem that the country faces, this would be a real hot topic of debate. My favorite was the Alaska Senate debate between Dan Sullivan and Mary Peltola, where the national debt was a question in the lightning round. You know, we're$40 trillion in debt, 15 seconds, you each have, go. I mean, I get that this is a kind of a dry topic at times, but it's almost incredible as a matter of missing the real important things. Joe, we'll give you the last word. Yeah, let's state a couple of facts about that budget situation.

23:20So first off, this is entirely an entitlement spending problem. This is not a tax cut problem because, Kyle, as you pointed out, the tax collections as a percentage of GDP have proven remarkably stable over the years, regardless of what the tax policies from Washington have been. So when we have debates about tax rate cuts or other reforms, as we've done at various times in recent years, what we are actually talking about is the way that you can collect that stable percentage of GDP in a way that does the least damage to economic growth. So we are not talking about a deficit or a debt that is a result of changes that Congress has made to reform the personal income tax or the corporate income tax.

24:08Now, we do have to say that one reason that that percentage is lower in the U.S. than it is, for example, in Europe is because we do not impose a consumption tax in the form of a value-added tax, which is common in Europe and often at very high percentages, between 15 and 20 percent on most of the things that people buy. And there are very good reasons that we have chosen not to impose that kind of tax on ourselves. So this deficit, it's not a revenue issue. It's also not a defense spending issue because defense spending as a portion of the federal budget is much smaller than people think it is.

24:48And even if you factor in the cost of the tens of billions of dollars in aid that we've given to Ukraine over the past few years, or the amount of money that we're spending on the Iran war, that is a rounding error, really, in the context of a$40 trillion debt that we've accumulated and$2 trillion annual deficit. So this is entirely about Social Security and the burden that that program is already placing on general revenues and general borrowing, even though allegedly we have these trust funds, which are actually just accounting fictions. It is a Medicare problem, which is now, I think, the second or third largest line item in the federal budget after interest on that$40 trillion of debt.

25:35and it's an entitlement program, particularly Medicaid is the other big driver. So I think that ideally politicians would start being honest about what is causing this problem. The reason that they like for this to be the lightning round of the debate instead of the substantive portion is precisely so they don't have to talk about any of these facts about what's going on, which then implies that we have to have some painful conversations about what the solution would be. But I think that the starting point here is that Republicans are going to have to level with voters. And it would be helpful, to put it mildly, if we aren't pretending that an enormous tax increase on labor in the form of this payroll tax expansion for Social Security should be the starting point for some kind of reform here.

26:27I think that that is not going to work the way that they think that it would. It's going to have a lot of negative effects on the economy and economic growth prospects moving forward because we do have to have economic growth in order to have any hope of pulling ourselves out of this debt pile over time. We should not be preemptively, you know, Republicans don't want to preemptively surrender to Democrats on some of the key structural design aspects of these entitlement programs that are driving the spending. Thank you, Joe and Kim. Thank you all for listening. You can email us at pwpodcast.wsj.com.

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