John Roberts and Brett Kavanaugh Are Rigging the Supreme Court Docket

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Last June, Supreme Court Justices John Roberts and Brett Kavanaugh shocked observers by joining the court’s three liberal justices to reject an Alabama congressional map aimed at diluting Black voters’ power. The ruling marked a (likely temporary) hiatus in the Roberts court’s systematic dismantling of the Voting Rights Act. It also invited a bevy of columnists to opine, See, this court isn’t so bad after all!

On the one hand, some fanfare was warranted. The Allen v. Milligan opinion was a genuine surprise, and as a recent lower court ruling in Georgia demonstrates, its effects will reverberate throughout the 2024 election cycle and beyond. A bad ruling would have been disastrous.

On the other hand, focusing on the decision obscures a disturbing reality: In the decade since it decimated the VRA with its notorious Shelby County v. Holder decision, the court’s right-wing majority has used its docket-setting power to tilt the playing field so sharply against democracy that even the rare “wins” simply preserve a degraded status quo.

A new study published on Thursday and led by my colleague Chelsey Davidson found that since the 2012–13 term, more than 80 percent of election-related cases on the Supreme Court’s hand-picked docket could move the law only in a direction that degraded fair elections.

In that time, the Supreme Court accepted 32 cases involving core democracy issues such as redistricting, ballot access, campaign finance, and VRA enforcement. In 26 of them, the lower court had issued a pro-democracy ruling. This means that the best-case scenario at the court was affirmation of the status quo, while a reversal of the lower court would restrict voter participation. By contrast, the justices picked just six cases where they might reverse anti-democracy rulings.

It’s not quite “Heads I win, tails democracy loses,” but it’s pretty damn close.

Take Allen. At issue was a congressional redistricting plan that advantaged Republicans by “cracking” many of Alabama’s Black voters across districts. The gerrymandered map would have given Black voters, who make up 26 percent of Alabama’s voting-age population, a meaningful voice in electing just one of the state’s seven representatives—essentially cutting the power of a Black voter’s ballot in half. For decades, the courts have held that this sort of racial gerrymandering is outlawed by Section 2 of the VRA, which is exactly what the district court ruled.

If the Supreme Court hadn’t taken the case, the district court’s ruling would have stood and nothing would have changed. Lower courts would have continued enforcing Section 2 as they had been. Instead, the justices took the opportunity to consider whether to rewrite precedent. That they ultimately chose not to do so in this instance was a victory, but it didn’t leave American democracy stronger than it was before the court heard the case.

In fact, the Supreme Court’s actions in Allen weakened democracy by diluting Black voters’ political power in the 2022 midterms. That’s because the Supreme Court unnecessarily stayed the lower court ruling while it considered the case. In doing so, SCOTUS ordered maps it eventually deemed unconstitutional to remain in place for the 2022 elections—a decision that likely helped give Republicans control of the House of Representatives.

Meanwhile, the justices have already given themselves another opportunity to weaken protections against racial gerrymandering by adding Alexander v. South Carolina State Conference of the NAACP to their docket for the current term.

By contrast, bad rulings in election-related cases dramatically weaken our democracy. Four years before Allen, the justices considered Rucho v. Common Cause. Like Allen, Rucho centered on gerrymandering, but partisan rather than racial gerrymandering. And as with Allen, the lower court held that egregious gerrymandering violates voters’ constitutional right to equal participation in the political process.

But in Rucho, Roberts swung the opposite direction, siding, with the rest of the Republican-appointed justices, against democracy. A 5–4 conservative majority ruled that questions of partisan gerrymandering were beyond the scope of the federal courts. The effect was to greenlight even the most blatantly anti-democratic gerrymandering schemes.

We’re seeing the destructive consequences of that see-no-evil approach play out right now in North Carolina, where Republicans have given themselves a path to permanent supermajorities and minority rule in one of America’s purplest states.

Looking at the Allen and Rucho rulings on the merits only, you might see an even split for and against democratic principles. In reality, though, Allen did nothing to advance the cause, while Rucho damaged it badly.

Play out that dynamic over and over and over again, and it’s not hard to see the danger facing the American experiment. If more than eight out of every 10 voting-related cases taken up by the Supreme Court can only move us backwards, our democracy will continue to erode beyond recognition.

Roberts and Kavanaugh are shrewd political operatives who have dedicated decades of their personal and professional lives to electing Republicans. They are not afraid to play the long game. Unlike some of their less patient colleagues, they recognize the power of cloaking their anti-democratic project in a veneer of moderation.

By rigging the docket, Roberts and Kavanaugh can have their cake and eat it too. They can win opinion page plaudits for their restraint, knowing that even their “good” decisions do nothing to expand voter access, while decisions like Shelby and Rucho devastate it.

If we want to give democracy a fighting chance, we have to stop taking the bait. Because what makes a dangerously radical court is not just how it decides the cases it hears but how it decides which cases to hear.