THE SUPREME COURT’S (ANTI)DEMOCRACY DOCKET

Analysis by Chelsey Davidson, Policy Counsel

Nov. 9, 2023

Summary

In this study, we demonstrate that assessing the Supreme Court’s democracy impact exclusively in terms of decisions overlooks a critical factor: the composition of the democracy docket the court chooses to take up. Two recent decisions announced in June 2023 — Allen v. Milligan and Moore v. Harper — led many media observers to conclude that the Supreme Court has paused its assault on democracy despite its 6-3 conservative majority. But an assessment of the anti-democratic potential of the Supreme Court’s election-related merits docket spanning October 2012 to present demonstrates the true nature of the high court’s impact on democracy:

More than 8 in 10 (81.25%) election-related cases had the potential to move the law in an anti-democratic direction, while just 18.75% had the potential to advance or maintain democracy. Moreover, the Supreme Court has taken up just one case with pro-democracy potential since Justice Barrett took the bench to capture a 6-3 right-wing supermajority while the 2020 election was fully underway. Because the court hand picks its own docket, the ideological potential of the cases the court chooses to take up is as significant in assessing the court’s impact on democracy as its ultimate rulings.

Background

The Supreme Court has steadily and systematically dismantled democratic institutions over the past decade, notably by repeatedly gutting the crowning achievement of the Civil Rights Movement, the Voting Rights Act of 1965 (VRA). But in two election-related decisions in June 2023, the Supreme Court rejected extreme anti-democratic arguments, declining to further its decimation of Section 2 of the VRA and (temporarily) closing the door on a fringe, extremist scheme that would have handed nearly unfettered control of federal elections to state legislatures. Because of the shocking (i.e., reasonable) decisions in Allen v. Milligan and Moore v. Harper, many court observers rushed to assert that despite the court’s 6-3 conservative supermajority, the court isn’t the enemy of democracy and fair elections they long feared it to be. 

Such a viewpoint is premised on a myopic misunderstanding of the way the Supreme Court affects the law. The court exerts impact on our lives not just through the decisions it issues, but through the cases it chooses to decide in the first place. When it comes to the vast majority of its docket, cases are not assigned to the Supreme Court; instead, the court exerts enormous influence over our legal climate through the choices it makes in constructing its own docket. 

By overwhelmingly taking up cases which can only move the country in a regressive direction, the Supreme Court gets to have its anti-democratic cake and eat it, too. To the casual observer, it might seem like the court’s landmark and blatant anti-democracy opinions are “balanced” out by democratic wins in cases like Allen and Moore. But because of the docket’s intentional skew, the Supreme Court gets to play moderate ally in cases that should never have been heard in the first place by simply preserving the status quo. Meanwhile, its extremist opinions set our democracy back decades, steadily chiseling away at voting rights and foundational election principles over time.

Take three of the Supreme Court’s recent anti-democracy blockbuster decisions: Shelby County v. Holder, Rucho v. Common Cause, and Brnovich v. Democratic National Committee. In Shelby, the Court struck down a key provision of the VRA concerning the coverage formula for preclearance requirements in jurisdictions with a history of racist voting practices. States began implementing regressive voting laws within hours of the decision, with 23 enacting newly restrictive statewide voter laws within 5 years. In Rucho, the court held that victims of egregious partisan gerrymandering could not have their day in federal court. And in Brnovich, the court dealt a major blow to the VRA’s nationwide ban on racial discrimination in voting. 

In all three cases, the lower court issued pro-democracy decisions. Once the Supreme Court took up the cases, it could either preserve the status quo of the lower court decisions, or shred democratic principles. In all three cases, it chose the latter.

In Allen and Moore — the “good” decisions from June 2023 — the court humored radical extremists by agreeing to hear appeals of pro-democracy lower court decisions. And Chief Justice John Roberts and Justice Brett Kavanaugh were praised as democratic heroes when they merely voted to just leave democracy alone… at least for four months.  (It is also worth noting that in Allen, the Court issued an unnecessary stay of the lower court decision while it decided the case, which caused districts the Court later acknowledged are unconstitutional to remain in effect for the 2022 elections, disenfranchising Black voters and  likely handing Republicans control of the House of Representatives.) In October 2023, the court heard arguments in Alexander v. South Carolina State Conference of the NAACP — again agreeing to consider overturning a lower court’s pro-democracy opinion granting relief in a racial gerrymandering case.

In order to assess the Supreme Court’s full impact on democracy through its docket, Take Back the Court conducted an analysis of the 32 election-related cases the court chose to hear, from its 2012-2013 term to its current fall 2023 cert grants. Each case was coded as having pro-democracy or anti-democracy potential based on the change to the status quo represented by each case.

The 26 decisions in which the Supreme Court agreed to take up an appeal of a pro-democracy lower court decision are coded as “anti-democracy” in our study, because of their potential to weaken democratic institutions and laws relative to the status quo. 

Conversely, the 6 cases in which the Supreme Court agreed to hear an appeal of an anti-democratic lower court decision are coded as “pro-democracy” in our study because of their potential to strengthen democratic institutions and laws relative to the status quo. For example, in Federal Election Commission v. Ted Cruz for Senate, a three-judge panel had ruled that an important anti-corruption provision of the Bipartisan Campaign Reform Act was unconstitutional. In taking up the case, the Supreme Court gave itself the opportunity to rule in a pro-democracy way relative to the status quo. (Though ultimately, the Supreme Court affirmed the lower court’s decision.)

Results

We identified 32 election-related cases on the Supreme Court’s merits docket from its 2012-2013 term — the term in which it heard Shelby County — to present. Of those 32 election-related cases, 81.25% (n= 26) had the potential to move the law in an anti-democracy direction, while only 18.75% (n=6) had the potential to move the law in a pro-democracy direction.

We further analyzed the Court’s docket by election-related sub issue. Issue areas included ballot access, redistricting, the Voting Rights Act of 1965, campaign finance, and Electoral College cases. Individual cases could be coded in multiple categories (for example, cases involving Voting Rights Act claims in the context of redistricting were coded as both redistricting and Voting Rights Act cases).

All five cases the court took up concerning ballot access could only move the law in an anti-democracy direction. 81% of redistricting cases (17 of 21) the court took up had anti-democracy potential while just 19% (4 of 21) had pro-democracy potential. 78.5% (11 of 14) of Voting Rights Act cases the court took up had anti-democracy potential compared to just 21.5% (3 of 14) with pro-democracy potential. The Supreme Court took up very few cases related to campaign finance and the Electoral College; of the three campaign finance cases, 67% (2 of 3) had anti-democracy potential compared to 33% pro-democracy potential (1 of 3), and the court’s docket was evenly split on its two Electoral College cases.