The current court has led to a decline in democracy---only legislative curbing can solve.

Part III: The Impact of the Roberts Court on American Democracy

The Roberts Court’s decisions together have contributed to the recent decline of American representative democracy. Its decisions in Shelby County and Brnovich gutted the most powerful provisions of the Voting Rights Act, hamstringing Congress’s noble efforts to deliver on the promise of the Fifteenth Amendment. These and other decisions have made it easier for states to enact restrictive voting laws and draw electoral maps that dilute votes based on race and political party, and at the same time, harder or impossible for voters to challenge them in court. Finally, the Court has transformed the myth of voter fraud into a free pass to enact burdensome and discriminatory voting rules, while narrowing the acceptable justifications to rein in the distorting influence of money in elections. All of the Roberts Court’s decisions have also led to greater political polarization.

As far as explanation, the Court’s decisions chronicled here lack any coherent and principled through-line. The decisions cannot be explained, for example, by a principled commitment to judicial restraint. That interest could explain why the Court in Rucho decided not to venture further into the political thicket. But it cannot explain the Court’s ready willingness to strike down democracy-reinforcing acts of Congress in Shelby County, Citizens United, and McCutcheon. It could explain the Court’s uniform deference to legislatures when they assert a need for discriminatory or burdensome voting rules to combat voter fraud. But it cannot explain the Court’s refusal to afford the same deference when legislatures see a need to regulate money in politics to combat corruption and its appearance. Nor can these decisions be explained by a devotion to text, not with the addition of extra-textual factors in Brnovich or the failure to consider the Fifteenth Amendment in Shelby County. And certainly these decisions cannot be explained by an abiding respect for precedent, not with Citizens United and Rucho both overruling key precedents.

The lack of a unifying theory for the Roberts Court’s democracy jurisprudence leaves an explanatory void that does damage to the Court’s legitimacy. It leaves room to wonder whether the Roberts Court is guided in this realm not by some coherent judicial philosophy but by other motivations. Some have, for example, pointed to the consistent partisan make-up of the winners of these decisions—including where partisan amici fall on opposite sides of the “v”—as an indication that the outcomes may simply reflect loyalty of the Justices to the party or ideology of the President who appointed them.122 Another theory is that members of the current majority are simply averse to an egalitarian, participatory democracy in which every eligible citizen votes.123 Indeed, the losing party in every one of the Court’s decisions discussed here are American voters, particularly voters of color and those from marginalized backgrounds.

Speculation about the Justices’ subjective motivations, especially as they relate to democracy itself, does no favors to the Court’s current public perception problem. A June Gallop poll reported public confidence in the Supreme Court at 25 percent, a historic low.124 In a May 2022 Quinnipiac poll, a staggering 61 percent of registered voters said they believe the Supreme Court is mainly motivated by politics rather than law.125 And more than half of registered voters, 52 percent, reported that they disapproved of the way the Court is handling its job, with 37 percent approving and 14 percent not expressing an opinion.126 By contrast, in 2003, the Court’s disapproval rating was only 28 percent, with 56 percent approving and 17 percent not expressing an opinion.127 The President’s Commission on the Supreme Court acknowledged that the Court’s role in democracy and its perceived legitimacy are key factors in the debates surrounding court reform.128 In recent public statements, the Justices themselves have also acknowledged the problem.129

Conclusion

In sum, the Supreme Court’s decisions on voting rights, partisan gerrymandering, and campaign finance have done, and continue to do, damage to voters, American democracy generally, and to the legitimacy of the Supreme Court itself. As we’ve noted, the Court’s new supermajority appears poised to speed along on this anti-democratic trajectory, with cases like Merrill v. Milligan and Moore v. Harper on the Court’s docket for next term.

The question now is: What is to be done? Better lawyering by advocates for democracy is not the solution. The examples cited here show that this Court acts with determination to undermine democracy, even when its stated reasons for doing so are made out of whole cloth and utterly unpersuasive. When one branch of the federal government has gone this far astray, the only solution is a firm application of the “checks and balances” the Framers designed to prevent such abuses of power. Indeed, the Court’s consistent undermining of American democracy is a quintessential example of why our Constitution leaves no single actor or institution immune from correction.

Congress must step up. It has the constitutional authority to correct many—though not all—of the Court's most egregious anti-democratic rulings. Congress has authority over the size, jurisdiction, and other particulars of how the Supreme Court and the federal court system is structured. The Framers also gave Congress the power to check the Court in other ways, such as changing the number of Justices and setting term limits. It is beyond the scope of this report to map out a specific program of congressional action in response to the Roberts Court’s anti-democratic crusade, but serious, consistent, and substantial legislative effort to restore American democracy is the only remedy we have left.