The twenty-first century ushered in an era of political partisanship in election law cases. The 2000–2020 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 America’s 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 nation’s 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 nation’s 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 court’s 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 America’s faith in its electoral system. The justices allowed themselves to become pawns in the nation’s 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 court’s decisions demonstrated a pattern of bias in favor of one political party’s 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 2000–2020 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.