Partisan Preferences in Supreme Court Decision-Making
I collected data on every election law decision during the 2000–2020 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.1
Table 1.1 Partisan Victories, Election Law Cases, 2000–2020
|
Case |
Republican |
Democratic |
|
Bush v. Palm Beach County Canvassing Board (2000) |
✓ |
|
|
Bush v. Gore (2000) |
✓ |
|
|
Hunt v. Cromartie (2001) |
✓ |
|
|
FEC v. Colorado Republican Federal Camp. Comm. (2001) |
✓ |
|
|
Republican Party of Minnesota v. White (2002) |
✓ |
|
|
FEC v. Beaumont (2003) |
✓ |
|
|
Georgia v. Ashcroft (2003) |
✓* |
|
|
McConnell v. FEC (2003) |
✓ |
|
|
Vieth v. Jubelirer (2004) |
✓ |
|
|
Wisconsin Right to Life v. FEC (2006) |
✓ |
|
|
Randall v. Sorrell (2006) |
✓ |
|
|
League of United Latin American Citizens v. Perry (2006) |
✓ |
|
|
FEC v. Wisconsin Right to Life (2007) |
✓ |
|
|
Crawford v. Marion County Election Board (2008) |
✓ |
|
|
Davis v. FEC (2008) |
✓ |
|
|
Bartlett v. Strickland (2009) |
✓ |
|
|
Citizens United v. FEC (2010) |
✓ |
|
|
AZ Free Enterp. Club’s Freedom Club PAC v. Bennett (2011) |
✓ |
|
|
Perry v. Perez (2012) |
✓ |
|
|
American Tradition Partnership, Inc. v. Bullock (2012) |
✓ |
|
|
Tennant v. Jefferson County Commission (2012) |
✓ |
|
|
Arizona v. Inter Tribal Council of Arizona (2013) |
✓ |
|
|
Shelby County v. Holder (2013) |
✓ |
|
|
McCutcheon v. FEC (2014) |
✓ |
|
|
Alabama Legislative Black Caucus v. Alabama (2015) |
✓ |
|
|
Arizona State Legis. v. Arizona Indep. Redistr. Comm. (2015) |
✓ |
|
|
Cooper v. Harris (2017) |
✓ |
|
|
Husted v. A. Philip Randolph Institute (2018) |
✓ |
|
|
Minnesota Voters Alliance v. Mansky (2018) |
✓ |
|
|
Abbott v. Perez (2018) |
✓ |
|
|
Thompson v. Hebdon (2019) |
✓ |
*The decision in Georgia v. Ashcroft (2003) undermined the Voting Rights Act, and therefore, is not viewed as a Democratic victory today, even though the Court ruled for the Democratic-controlled Legislature in Georgia.
Source: Table created by author based on data from published U.S. Supreme Court opinions.
Judicial scholars have long touted the prevalence of consensus building on the Court in other areas of law, but this pattern does not hold in election law cases. Table 1.2 demonstrates that 52.94 percent of election law cases had at least three dissenting votes, and 45.10 percent ended in a 5–4 split. These results shatter the myth that 5–4 decisions are rare, or that the Court reaches a consensus in most cases. In fact, the justices reached a unanimous decision in only one-third of the cases (33.33 percent).
Table 1.2 Majority Decisions, Election Law Cases, 2000–2020
|
Votes |
Total Cases |
Percentage |
|
5-4 |
23 |
45.10 |
|
9-0 |
12 |
23.53 |
|
7-2 |
6 |
11.76 |
|
8-0 |
5 |
9.80 |
|
6-3 |
3 |
5.88 |
|
8-1 |
1 |
1.96 |
|
5-3 |
1 |
1.96 |
Notes: N = 51. Vote totals represent the number of justices who agreed with the final judgment. This table does not account for concurring opinions.
Source: Table created by author based on data from published U.S. Supreme Court opinions.
By far, the area the justices were most concerned with was redistricting, which accounted for 45.10 percent of the cases, as indicated by table 1.3 below. The redistricting cases generally fell into one of two areas: racial gerrymandering or partisan gerrymandering. These cases sometimes overlapped with the requirements of the Voting Rights Act. The second most common topic was campaign finance which accounted for 25.49 percent. Ballot issues were featured in four cases, but two of those involved the 2000 presidential election. After that, none of the other topics garnered much attention.
Table 1.3 Topics, Election Law Cases, 2000–2020
|
Topics |
Total Cases |
Percentage |
|
Redistricting |
23 |
45.10 |
|
Campaign Finance |
13 |
25.49 |
|
Ballots |
4 |
7.84 |
|
Voting Rights Act |
3 |
5.88 |
|
Voter ID |
2 |
3.92 |
|
Registration Rolls |
1 |
1.96 |
|
Political Speech |
1 |
1.96 |
|
Polling Stations |
1 |
1.96 |
|
Endorsements |
1 |
1.96 |
|
Faithless Electors |
1 |
1.96 |
|
Primaries |
1 |
1.96 |
Note: N = 51.
Source: Table created by author based on data from published U.S. Supreme Court opinions.
Table 1.4 lists the number of majority votes for each justice, and the percentage of times they were in the majority. These totals provide a good indication of which justices had the greatest impact on election law over this time period. Justices Kennedy and Thomas led the way with forty-one majority votes, although Kennedy joined the majority at a slightly higher percentage. All of the Republican-appointed justices voted with the majority at least 75 percent of the time, except for Justices Stevens and Souter who typically voted with the Democrats. Justices Gorsuch and O’Connor had the most consistent records. Justice Gorsuch voted with the majority in all ten cases he heard, while O’Connor only dissented in one out of thirteen cases. It should be noted that Gorsuch, Rehnquist, and Kavanaugh are at the bottom of the list because they were on the Court for the least amount of time during this period.
Table 1.4 Majority Votes, Election Law Cases, 2000–2020
|
Justices |
Majority Votes |
Percentage |
|
Kennedy |
41 |
87.23 |
|
Thomas |
41 |
80.39 |
|
Roberts |
34 |
89.47 |
|
Alito |
32 |
84.21 |
|
Ginsburg |
32 |
62.75 |
|
Breyer |
32 |
62.75 |
|
Scalia |
27 |
77.14 |
|
Kagan |
19 |
73.08 |
|
Sotomayor |
18 |
66.67 |
|
Stevens |
13 |
52.00 |
|
O’Connor |
12 |
92.31 |
|
Souter |
12 |
50.00 |
|
Gorsuch |
10 |
100.00 |
|
Rehnquist |
10 |
76.92 |
|
Kavanaugh |
3 |
75.00 |
Note: N = 51.
Source: Table created by author based on data from published U.S. Supreme Court opinions.
The most impactful Democratic-appointed justices were Ginsburg and Breyer. They both voted with the majority thirty-two times. However, their percentage of 62.75 is much lower than the Republican justices. Justice Kagan had the highest percentage among the Democrats at 73.08 percent. Notably, every justice in the sample voted with the majority at least 50 percent of the time, with Souter and Stevens being the only ones below 60 percent.
The percentages in table 1.4 are cause for optimism if we only look at the sample as a whole. The justices appear to vote together regardless of partisan affiliation. The Democratic percentages are slightly lower, but that is to be expected since they were in the minority. However, when we isolate the cases involving partisan issues in table 1.5, we see the justices retreating into their respective partisan corners. I identified thirty-one party-aligned decisions and twenty neutral. While the justices tended to vote together on the neutral cases, there was a clear divide on the others.
Table 1.5 Partisan Votes, Election Law Cases, 2000–2020
|
Justices |
Republican-aligned |
Democratic-aligned |
Neutral |
Republican-aligned (%) |
|
Thomas |
28 |
3 |
20 |
90.32 |
|
Kennedy |
24 |
6 |
17 |
80.00 |
|
Scalia |
23 |
3 |
9 |
88.46 |
|
Alito |
20 |
1 |
17 |
95.24 |
|
Roberts |
19 |
2 |
17 |
90.48 |
|
Rehnquist |
8 |
2 |
3 |
80.00 |
|
Breyer |
6 |
25 |
20 |
19.35 |
|
Ginsburg |
6 |
25 |
20 |
19.35 |
|
O’Connor |
5 |
5 |
3 |
50.00 |
|
Gorsuch |
4 |
0 |
6 |
100.00 |
|
Stevens |
4 |
13 |
8 |
23.53 |
|
Kagan |
3 |
11 |
12 |
21.43 |
|
Souter |
3 |
13 |
8 |
18.75 |
|
Sotomayor |
2 |
13 |
12 |
13.33 |
|
Kavanaugh |
1 |
0 |
3 |
100.00 |
Note: N = 51.
Source: Table created by author based on data from published U.S. Supreme Court opinions.
Justice Thomas had the biggest partisan impact. He made twenty-eight Republican-aligned decisions, and only three Democratic. As already noted, one of those “Democratic” decisions was Georgia v. Ashcroft (a 5–4 ruling for the Democratic Legislature in Georgia that found the Republican appointees in the majority and the Democrats in the dissent). Justices Thomas, Scalia, Alito, Roberts, and Rehnquist joined three or fewer Democratic-aligned decisions. Each of them had a proportion of Republican-aligned decisions above 80 percent. Justice Alito had the highest percentage at 95.24 (he only sided with the Democrats one time out of twenty-one cases). Justice Kennedy was at 80 percent, but he did join a Democratic decision six times. Justice O’Connor was the only one in the sample who consistently crossed party lines. She voted evenly between the two sides—five times for the Republicans and five for the Democrats.
Almost the same level of partisanship holds true for the Democratic appointees. Each of them had a proportion of Democratic decisions above 78 percent. So we see the same uniformity among the Democratic justices as the Republicans. In fact, Justices Breyer and Ginsburg had identical vote totals. However, they did not have the same partisan impact as the Republican appointees because they were in the minority.2 The only times the Democrats were able to author a majority opinion was when one of the Republicans cast a swing vote, and that was rare. This era was dominated by Republican appointees, with Democrats playing a minimal role.
In terms of written opinions, Republican appointees authored thirty-one majority opinions compared to only twelve from the Democratic appointees. There were eleven per curiam, unsigned opinions. I added a plurality opinion to the majority column if it appeared first and reflected the outcome joined by a majority of the justices. Concurring opinions are not included.
Table 1.6 reveals that Chief Justice Roberts assigned himself nine majority opinions—29 percent of the Republican total. Another surprising result is the number of dissenting opinions written by Justice Thomas. Despite finding himself in the majority 80 percent of the time, he still managed to author eleven dissenting opinions—more than any other justice in the sample.
Table 1.6 Written Opinions, Election Law Cases, 2000–2020
|
Justices |
Majority |
Dissenting |
Total |
|
Roberts |
9 |
2 |
11 |
|
Breyer |
6 |
8 |
14 |
|
Scalia |
5 |
6 |
11 |
|
Ginsburg |
4 |
5 |
9 |
|
Kennedy |
4 |
2 |
6 |
|
Stevens |
3 |
10 |
13 |
|
Alito |
3 |
4 |
7 |
|
Thomas |
2 |
11 |
13 |
|
Souter |
2 |
8 |
10 |
|
Kagan |
2 |
2 |
4 |
|
O’Connor |
2 |
1 |
3 |
|
Rehnquist |
1 |
1 |
2 |
|
Sotomayor |
0 |
3 |
3 |
|
Gorsuch |
0 |
0 |
0 |
|
Kavanaugh |
0 |
0 |
0 |
|
Per curiam |
11 |
0 |
11 |
|
N |
54 |
63 |
117 |
Notes: This table presents instances when justices wrote a separate dissenting opinion, sometimes in part. There were fifteen cases without a dissenting opinion.
Source: Table created by author based on data from published U.S. Supreme Court opinions.
Case Analysis
In the chapters that follow, I selected the most contentious cases for review. I conducted a line-by-line content analysis in order to break the opinions into their individual parts. I focused on cases decided by a 5–4 partisan split that had a significant effect on our electoral institutions. The topics covered include campaign finance, advertising, gerrymandering, and voter suppression, among others. In total, I analyzed over 2,800 lines of election law cases. I included a table in each chapter emphasizing the most prevalent components of each opinion. These tables highlight the lack of reliance on precedent or ideology in the decisions. They show how the justices often strayed from the decision-making tenets they claim to follow. While tables 1.1–1.6 above provide aggregate data, the following chapters focus on individual cases and their impact.
Throughout this process, I endeavored to accurately and consistently categorize each line, however, some lines proved difficult to categorize. Nevertheless, the tables provide an accurate picture of the content of these opinions. All facts, case references, quotes, and arguments are derived from the majority and dissenting opinions, and the analysis is my own, except when specifically referencing an opinion. The case analyses in the following chapters demonstrate a pattern of partisanship that is hard to ignore.
NOTES
1. Georgia v. Ashcroft, 539 U.S. 461 (2003).
2. There are only four Democratic appointees in the sample (Breyer, Ginsburg, Sotomayor, and Kagan). Justices Stevens and Souter are often grouped with the Democratic appointees because of their liberal voting records, despite being appointed by Presidents Ford and H. W. Bush, respectively.