Ryan J Rebe - The Partisan Court: The Era of Political Partisanship on the U.S. Supreme Court

The Partisan Court

The Partisan Court

The Era of Political Partisanship
on the U.S. Supreme Court

Ryan J. Rebe

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To my wife Mary

Contents

Partisan Victories, Election Law Cases, 200020204

Majority Decisions, Election Law Cases, 200020205

Topics, Election Law Cases, 200020206

Majority Votes, Election Law Cases, 200020206

Partisan Votes, Election Law Cases, 200020207

Written Opinions, Election Law Cases, 200020208

Per Curiam Opinion, Bush v. Gore (2000)13

Justice Scalias Majority Opinion, Republican Party of Minnesota v. White (2002)20

Justice OConnors Majority Opinion, Georgia v. Ashcroft (2003)26

Justice Scalias Plurality Opinion, Vieth v. Jubelirer (2004)34

Justice Roberts Majority Opinion, FEC v. Wisconsin Right to Life, Inc. (2007)38

Justice Stevens Plurality Opinion, Crawford v. Marion County Election Board (2008)44

Justice Kennedys Majority Opinion, Citizens United v. Federal Election Commission (2010)52

Justice Roberts Majority Opinion, Arizona Freedom Club PAC v. Bennett (2011)58

Justice Roberts Majority Opinion, Shelby County v. Holder (2013)66

Justice Roberts Plurality Opinion, McCutcheon v. FEC (2014)72

Justice Alitos Majority Opinion, Husted v. A. Philip Randolph Institute (2018)78

The twenty-first century ushered in an era of political partisanship in election law cases. The 20002020 terms represented one of the most politically contentious eras in Supreme Court history. During this period, the court handed down several controversial decisions that raised serious questions about the justices independence and dedication to neutral decision-making. While consensus-building remained the norm in other areas of law, partisan preferences affected the justices votes in election law cases. As a result, court reformers began to question whether the justices were reshaping Americas electoral institutions to further a partisan agenda.

It was during this era that the justices fell conspicuously out of step with the American people. The composition of the Court remained predominantly male, Catholic, and Caucasian, and the Republican Party held the majority throughout despite representing a minority of the electorate. The lack of diversity on the nations highest court was striking. The court continuously lagged behind the rest of the Country in terms of generational and demographic changes, and consequently, its standing with the American people declined. This decline threatened the nations stability and the rule of law.

While the justices extoled the virtues of originalism and textualism, the reality was quite different. A close examination of their opinions revealed a politically divided court that regularly brushed aside decades-long precedent and statutes. The result was inconsistency and unpredictability in election law decisions. Most striking was the courts unwillingness to stand up to partisan efforts to manipulate the electoral system at the expense of average voters. The justices presided over unlimited corporate campaign spending, partisan gerrymandering, purged registration rolls, unwarranted voting restrictions, and the deterioration of Americas faith in its electoral system. The justices allowed themselves to become pawns in the nations political battles, instead of stalwart defenders of the Constitution.

This book sets out to expose a pattern of partisanship on election law cases over the past two decades. A careful reading of election law opinions calls into question the justices dedication to the principles of states rights, plain meaning, deference to elected representatives, and adherence to precedent. During this era, the Supreme Court failed to rise above the increased partisanship of the time. Instead of representing an independent, nonpartisan branch of government, the courts decisions demonstrated a pattern of bias in favor of one political partys agenda over the other. Even in the absence of electoral constraints, the justices exhibited a clear pattern of partisan loyalty on election law decisions when there was a partisan issue at stake.

The following chapters lay out the evidence for this argument. Chapter 1 provides aggregate data for all election law opinions during the 20002020 terms. The analysis includes a breakdown of partisan outcomes, final vote totals, cases by topic area, as well as individual analysis of the justices votes and number of written opinions. Chapters 2 through 13 offer a line-by-line content analysis of the most controversial election law decisions during this era. Taken together, the aggregate data and individual case analyses paint a picture of a politically divided Supreme Court.

I collected data on every election law decision during the 20002020 Supreme Court terms. I counted the justices votes, and then labeled the outcomes as either Republican-aligned, Democratic-aligned, or neutral. There are a total of fifteen justices in the sample and fifty-one cases. A Republican-aligned decision is one in favor of the Republican Party, its representatives, or its agenda. I labeled a decision as neutral if I was unable to fit it into a partisan category. I identified twenty-one Republican-aligned decisions, ten Democratic-aligned, and twenty neutral.

Table 1.1 provides a listing of the partisan-aligned decisions. With eleven Republican-appointed justices and only four Democratic-appointed, this listing highlights the importance to a political party of controlling a majority on the Supreme Court. As table 1.1 shows, the Republicans achieved twice as many Supreme Court victories as the Democrats during this time period. Notably, between December 2003 and September 2012, the Democrats went nine years without scoring a single victory. Moreover, one of the Democratic victories Georgia v. Ashcroft (2003)could easily be put into the Republican column.

Partisan Victories, Election Law Cases, 20002020