The Supreme Court’s voting rights decision is upending the midterm election and raising concerns about its role in democratic backsliding. Thomas Keck finds that the Court has rarely helped maintain democratic guardrails in threatening periods. But the Roberts Court had been showing a mixed record until recently. Albert Rivero finds that election law cases at the Supreme Court lead to more party-line voting, but the cases have stood out less as the Court has become more partisan across the board.
Guests: Thomas Keck, Syracuse University; Albert Rivero, University of Virginia
Study: The US Supreme Court and Democratic Backsliding; Partisan Hacks?
Transcript
Matt Grossmann: Are the courts now contributing to Democratic backsliding? This week on the Science of Politics. For the Niskanen Center, I’m Matt Grossman. The Supreme Court’s latest voting rights decision is upending the midterm election and raising concerns about its role in Democratic backsliding. How well has the court maintained neutral guardrails versus polarized along partisan lines? Has it now become more of a source of the problem than a solution? This week, I talked to Thomas Keck of Syracuse University about his law and policy article, The US Supreme Court and Democratic Backsliding. He finds that the US Supreme Court has rarely protected guardrails in periods of threats to democracy and sometimes contributed to backsliding. The Roberts Court has been showing a mixed record until recently, but has moved toward accelerating backsliding with its latest decisions. I also talked to Albert Rivero of Virginia about his Journal of Political Institutions and Political Economy article, Partisan Hacks.
He finds that election law cases at the Supreme Court lead to party line voting more often than other cases. But that difference has actually lessened in the contemporary era as justice behavior has become more partisan across the board. The stakes of court actions for democracy are growing this year. The lessons from the research suggest we should not have been surprised, but we should be concerned. Let’s start with the broad historical arc from Thomas Keck. Tell us about the findings and takeaways from your article on The US Supreme Court and Democratic backsliding. What’d you find?
Thomas Keck: There’s a couple of starting points for this paper. One is the comparative literature on the role of courts and processes of democratic backsliding, and the lessons of that literature are that on the one hand, courts are often explicitly designed as democratic guardrails, like that’s one of their functions in modern constitutionalism. But on the other hand, in actual practice, they don’t always perform that role smoothly. And in fact, sometimes they get weaponized by autocratic leaders against democracy. That’s one starting point and sort of thinking through how that applies in the US context. And then, the other starting point is that the APD literature references a variety of prior Democratic crises in US political history from which we might learn something relevant for today. The idea was to put those two together and see what role the US Supreme Court has played during prior periods of Democratic crisis. In the US, does it match up with some of these findings from the comparative literature? And the short version of the takeaway is that the US Supreme Court has not been a reliable Democratic guardrail during prior periods of crisis, yeah.
Matt Grossmann: Let’s talk through each of those periods. I know you covered the 1790s, the Civil War and Reconstruction, the 1890s, the 1930s, and Watergate. What are the key lessons from each of those?
Thomas Keck: I borrowed the list of crisis periods from Mettler and Lieberman’s book called Four Threats, which traces four recurring threats to Democratic health across various periods of Democratic crisis in US political history. And I just wanted a list that had been derived without reference to the court’s role. They don’t talk very much about courts at all in that book. And so, that’s where the list of crisis periods comes from. We could argue about are there other periods that should be on a West and a like. I guess short version on each of the crisis periods, and so, what I look for in each crisis is first, is there what we might characterize as a fairly direct threat to the core principles of electoral democracy in each of these periods? And if so, does the court do anything to try to protect electoral democracy or is the court one of the agents of undermining electoral democracy?
The 1790s is the run-up to the election of 1800, which is basically the birth of the two party system and the idea of a loyal opposition is not firmly established yet. Running against the incumbent president appears as sedition to many political elites of the time. John Adams is running for reelection and he and his allies in Congress basically try to outlaw the opposition with the Sedition Act, and the court does nothing. The court is allied with the Adams administration and modern conceptions of free speech are not yet established. The short version is the court does nothing to … The court’s not the primary agent of undermining democracy, but nor is it doing anything to try to guard democracy.
Next period is the Civil War and Reconstruction, gigantic period of graces. Of course, a lot of stuff going on there. But if you think of white Southern efforts in the run-up to the Civil War to undermine democracy and defense of slavery, again, the court is mostly allied with those efforts and not doing anything to try to stop them. And then during reconstruction, the court famously gets enlisted in undermining reconstruction. Again, I don’t think the court is the primary actor. It’s not the main reason reconstruction fails, but it is not helping. If anything, it’s making things worse by inhibiting the reach of federal civil rights laws and the like.
The 1890s, you have, in some ways, this period is continuous with the Civil War and Reconstruction, but it’s like a resurgence of white supremacy and a sort of establishment of Jim Crow, starting with the Mississippi Constitutional Convention of 1890. Rick Valley describes this period, he says it’s the only example in global history. I have no way of knowing if that’s true or not, in which that the enfranchisement of Southern African Americans and then their mass disenfranchisement and then re-enfranchisement in the 1960s. He says that’s the only example in which that’s happened in that way. There’s massive disenfranchisement starting in the 1890s. And again, the court famously upholds Jim Crow and doesn’t really do anything to try to get in the way of that.
The 1930s, what Mettler and Lieberman emphasized is sort of one of the threats that they traced throughout their book is executive aggrandizement. If too much power is accruing to the president, that can be a threat to Democratic health. And so, that was happening under FDR. There’s also lots of literature on a different version of the Democratic crisis during that period. FDR himself was somewhat obsessed with that if Democratic institutions can’t perform and do something about the Great Depression, then Americans, like everybody elsewhere in the world, is going to turn to more authoritarian, political movements, whichever way you look at it, there’s not the same sort of crisis of electoral democracy during that period. There’s no direct attacks on the franchise or on fair vote counting and the like. I wind up bracketing that period. And then there’s the 1970s Watergate era where of course Nixon famously breaks into the opposition party’s headquarters and tries to tap their phones and the like, and that sort of becomes a … It metastasizes into a sort of broad crisis of governmental institutions, many of which undermine some fundamental principles of electoral democracy.
And there, that’s the one prior crisis period where I say the court does appear to have played a positive role. Most famously in the Watergate Tapes case where the court, including Nixon’s own appointees, rule against the president. The Watergate era is the only positive example of the court acting as a Democratic guardrail. And there’s a couple examples of the court acting to undermine democracy.
Matt Grossmann: Let’s go into that distinction a little bit more. What is it that causes you to characterize something as the court just failing to serve as a guardrail versus actively being part of undermining democracy?
Thomas Keck: I’m drawing here on a great book by Ros Dixon and David Landau, which is a comparative constitutional book where they emphasize that the term they use is abusive constitutional borrowing. And so what they emphasize is that basically every kind of feature of liberal democracy can be borrowed and abused and weaponized against liberal constitutional democracy, including judicial review. They talk about what they call abusive judicial review and they say it comes in two forms, and the weaker form is when courts just that fail to check abuses of power by other actors. If Nixon is abusing the powers of the presidency in ways that undermine electoral democracy, the court could either check it or not check it. And if the court fails to check it, that’s weak form abuse of judicial review. But sometimes the court itself actively undermines core norms and institutions of electoral democracy.
And so here, I always find that the clearest examples are, if some other power holder is doing something that can fairly be described as shoring up or strengthening the principles of electoral democracy, does the court try to obstruct that? Congress passed the 1965 Voting Rights Act that, by most accounts, strengthens the quality of US democracy. It was challenged in court and in 1960s, the court rejected those challenges 8:1. But if the court had instead declared all or part of the Voting Rights Act unconstitutional, that would be the court itself. It would be a more active assertion of judicial power that is harmful to democracy. It’s like somebody else undermines democracy. Does the court fail to check it? That’s like the weak form of abuse of judicial review.
Somebody else is trying to strengthen democracy. Does the court obstruct that? That’s the more stronger form. All of these judgments are, of course, contestable. We don’t have any consensus definition of what democracy is. So what actions by Congress or the court strengthen or weaken it are subject to reasonable contestation, for sure, yeah.
Matt Grossmann: But it sounds like there’s another distinction that is sometimes the same, which is sort of what is the conflict about? Is it directly about electoral competition in some way and voting versus is it about abuse of power or the kind of relationships between the branches? How often are those the same distinction and how important is it that the court is actually getting involved in electoral rules themselves?
Thomas Keck: I want to say they’re both important. It’s just a different lens. There’s a well-established political science literature on the US Supreme Court that’s about the sort of democratic legitimacy of judicial review both normatively but also just in actual practice. And so, one of the findings of that literature that’s pretty well established is that during “normal times”, during periods of normal politics, the court more or less operates within the mainstream of acceptable sort of public opinion or elite opinion, but that there’s moments of transition where because of the structure of our institutions where sometimes the White House and Congress turn over quickly but the court lags that sometimes the court is at odds with the other branches. And then, you have these periods which tend to provoke some crisis of legitimacy. They tend to provoke calls for court reform, because the court is misaligned with the other branches and so acting in a more obstructionist way.
That’s all very well-established in the US Supreme Court literature, and I think that the comparative literature on Democratic backsliding and the role of courts in that process just calls our attention to, I guess just I want to say like the core norms and institutions of electoral democracy. The US Supreme Court has always, sometimes it’s a recurring feature of the US Supreme Court’s history that it acts counter to the Democratic will in certain contexts or in certain periods, but that’s different. If the public supports regulations of child labor and the Supreme Court, in the run-up to the Great Depression and the New Deal, repeatedly strikes them down. That’s one thing. That’s bad. That creates a legitimacy crisis of a sort, but it’s different in kind if political elites are gaming the system to entrench their own hold on power and the court is helping them do it.
That just seems like worth calling attention to in its own light. Certainly, if the US is a case of Democratic backsliding right now in the sort of global sense, that’s a dimension that the comparative literature devotes a lot of attention to, and so we should be exploring it in the US as well.
Matt Grossmann: The court’s role in the 2020 election is seen by you and others as maybe a good case of court intervention. At least the loser of the election contested, everything in every court possible and both the lower courts and the Supreme Court were mostly not hearing those in ways that would undermine the election. On the other hand, it maybe wasn’t close enough to matter. How should we assess that in retrospect?
Thomas Keck: This paper came out before the 2024 election, and so-
Section. And so I adopt a kind of glass half empty, half full kind of assessment of the court’s role, and that’s partly influenced by these developments from the 2020 election.
And if you think about the 2020 election in contrast to the 2000 election where a single state is decisive in 2000 and that state’s vote count is divided by 537 votes, that it’s very much within the margin of litigation, right? And that’s not true in 2020, right? It’s a bigger margin. You would’ve had to flip the vote results in multiple states, and none of them were as close as Florida 2000, right?
And so in that way, it’s an easy test, but it’s still good that the court passed. So Trump and his campaign and his supporters filed many dozens of legal challenges to the election results and basically all of them were unsuccessful. And I am not 100% confident that it would’ve played out in the same way if it had really all just come down to how many votes are we counting in Fulton County, Georgia or whatever, right? I think that the judge’s behavior in the lead-up to the election raised cause for concern about that sort of partisan intervention.
I mean, just to give one example, so Amy Coney Barrett was confirmed to the Supreme Court a week before the election. And as always, Trump said the quiet part out loud, Trump said the reason why, “Well, why are you rushing so much? You wouldn’t confirm Merrick Garland,” whatever, “10 months before the election. Why are we rushing so much in the Senate this time?”
And Trump said, “Well, the election’s coming up and we might have some lawsuits about the election and we need our vote on the court.” And so that’s not a good sign.
So I don’t know. So they passed the test. It’s an easier test, but they passed the test. And so it is unqualified good that the court did not intervene on the side of the Trump campaign to try to overturn the vote count in 2020. Yeah.
Matt Grossmann: So as you mentioned, the article, I think you finished it probably in 2023, came out in ’24. And at the time, you were fairly mixed on your opinion of the Roberts Court.
So take us kind of to that time point, what had happened and what was weighing in favor or against the evidence that the Roberts Court was undermining democracy?
Thomas Keck: Yeah. So I want to say that by that point already, it was very clear that the court was pushing constitutional law pretty hard to the right, right? I mean, this had been a generation-long Conservative project to take back the courts, and they had had multiple prior moments where they thought they were on the verge of success and it didn’t work, right? They came up short because some Republican appointees famously turned out more moderate or liberal than they had anticipated.
But then Trump gets to appoint three judges and so it seems like the court is overturning Roe v. Wade, the court is in the process of getting rid of affirmative action, the court is very severely kind of undermining the administrative state.
From the particular lens of the court’s role vis-a-vis the quality of democracy in the United States, again, there were already bad signs. The court was already undermining the Voting Rights Act. The court was already enabling partisan gerrymandering, but the court was not signing onto, to put it in comparative terms, the court was not signing onto the autocratic leader’s effort to kind of permanently entrench his own hold on power, right? And so, so mixed. My judgment would be more negative now from this particular lens, because several things, notable things have happened since then.
In 2024 itself, so before the election, in the first half of 2024, the court issued three decisions that were directly related to January 6th. Legally, the three cases had literally zero to do with each other. One was about the meaning of the original Constitution and the basic structure of federalism. One was about the meaning of Section 3 of the 14th Amendment. And one was about the meaning of a law passed in the wake of the 2008 financial crisis.
Legally, literally nothing to do with each other, but all three of them, they rule in Trump’s favor. And the most significant of those is the presidential immunity from prosecution case. And so that is a really dramatic kind of thumb on the scale in favor of Trump in a way that I think has been harmful to US democracy.
Matt Grossmann: So have all of the decisions since you wrote, moved us further on one side of the scale or has there been any compensating effort by the court since you wrote to strengthen democracy?
Thomas Keck: So there it depends how broad your lens is, right? So are some cases sort of just about kind of legal policy disputes and not directly about the core norms and institutions of democracy? Trump’s unilateral executive policymaking in the second term has been so aggressive that I guess all of those cases are kind of in a way about is the president just allowed to make whatever laws he wants to make? That seems like not the way our democracy is designed to operate.
And so they ruled against him in the tariff’s case. And so I think it’s a sign that they are not 100% in his pocket and they are capable of ruling against him. But on the stuff that is most directly related to electoral democracy, the most recent example is the Voting Rights Act case from Louisiana, on that stuff it still seems to all be pushing in one direction.
Matt Grossmann: Yeah, so let’s talk about that decision which prompted us to revisit. Number one, you should be credited with having predicted that all of these were coming down the line and making your judgments known in advance about what they would indicate. So kind of tell us how your thinking was when you wrote the article about these coming and how they turned out relative to kind of best and worst-case scenarios.
Thomas Keck: Yeah. So the Voting Rights Act cases are a good example of a number of sort of features of the Roberts Court. They’re a set of cases where the Conservative justices have remained united, which is not true on all issues, but on this they’re really kind of all on the same page with each other.
It’s a clear example of the long-running kind of generational Conservative project to pull the court to the right and use it to advance both Conservative policy priorities, but also Republican partisan priorities, right? I mean, we have memos from the Reagan administration authored by John Roberts when the Voting Rights Act was up for renewal of Robert’s very sharply [inaudible 00:23:03] the Voting Rights Act and urging Reagan not to sign onto this renewal. And he was unsuccessful in that effort, but he’s continued the project for decades.
The Voting Rights Act cases are not just kind of Conservative policy results, but they directly benefit the partisan fortunes of the Republican Party. And this one is like, what’s the objective baseline? I don’t know. But all of the Supreme Court’s judgments are contestable, right? The cases that get to the Supreme Court tend to be hard cases, but are there reasonable arguments on both sides? Okay from one angle? Yes.
But the Voting Rights Act cases I think are particularly striking examples of, I guess, results-oriented decision-making where I think, I mean, if I summarize some of the arguments briefly for your listeners, I mean, it’s really quite striking.
So in 1980 or in the early ’80s, the Supreme Court issues a decision saying that Section 2 of the Voting Rights Act only applies to intentional racial discrimination. And Congress renews the Voting Rights Act and says, “No, that is wrong. That is not what we meant.” And they adopt very clear and explicit language saying changes in election law that have the effect of burdening a racial minority’s impact on elections are violations of Section 2, and the Supreme Court just said the opposite. Right? The Supreme Court basically just wrote those revisions out of the Voting Rights Act.
And again, this is a long line of decisions, right? So in Shelby County v. Holder in 2013, the court guts a different provision of the Voting Rights Act, the preclearance provision, and Chief Justice Roberts write the opinion in that case and he says, “Don’t worry, times have changed. Maybe it was necessary once, but this is an extreme federal intervention into state election laws. We don’t really think that’s called for anymore, but don’t worry, Section 2 of the Voting Rights Act is still in place,” but then a decade passes and they completely gut Section 2 as well.
So I think it’s been a clear priority of the Conservative coalition on the Court. It has sort of reached its culmination. It is directly beneficial to the Republican Party. It is directly intentioned with the sort of central kind of achievements of the civil rights era.
Matt Grossmann: So you mentioned that these are contestable and sometimes hard to tell in the moment, so I guess give us the best defense that you can of what the Conservatives are trying to achieve here. I assume that they would not say that they’re trying to undermine democracy, and they might say that you’ve left out the cases that seemed to you reasonable for the liberal court when it was active but that two Conservatives appeared as anti-Democratic interventions. What would that case look like?
Thomas Keck: Sure. So kind of one general point and then one more specific point.
So the general point is that the Conservative justices on the Roberts Court, and I think legal Conservatives more generally have been very much acting for decades now in reaction to the Warren Court, right?
And so to the extent that they were motivated by opposition to what they perceived as illegitimate liberal judicial activism taken by the Warren Court, then a lot of what they think they’re doing in their mind is correcting those prior errors, right?
So if Roe v. Wade was a fundamentally unjust illegitimate decision, then no matter how controversial Dobbs v. Jackson is, it’s a correction of that prior error.
And so I do think that motivates a lot of what’s going on and there’s lots of room for reasonable disagreement about was Roe v. Wade correct or not, and all the other kind of decisions, landmark rights-protecting decisions from that era.
More specifically on the point about kind of election law and things more even closer to the core of electoral democracy, so gerrymandering, voting rights and the like, I think I’m going to have a harder time doing it in a compelling way here, but I’m going to try, that the Conservatives on the Roberts Court think that their predecessors in the Warren Court and Congress, and I guess just liberal elites in general during the prior period of American politics, adopted and enacted a theory of racial entitlement in which they moved way beyond the sort of legitimate goal of racial non-discrimination towards a kind of idea of racial equality in results and that the Voting Rights Act through that lens is a kind of affirmative action trying to give extra rights to African Americans, and that what they’re doing is just trying to return us to the sort of neutral baseline of colorblind non-discrimination. I think that’s what Justice Alito would say.
Matt Grossmann: How much of this is new in terms of how the court behaves versus sort of just what’s in front of the court because of changes in the political system as a whole?
So we have polarization in Congress and the executive. We have a much more aggressive form of executive policymaking, and so kind of what’s in front of the court in these matters has changed over time and maybe how we view debates at the court has changed. So how do we distinguish between those and the sense that something really has changed about how and why the court is making its decisions?
Thomas Keck: Yeah, no, that’s a great question, and of course we could ask the same question about the kind of the Trump era itself, right? It’s obviously continuous with some prior kind of trends in American political development in some ways and it represents a break in some ways. And so I think the same is true with the court.
One of the reasons why in this paper, which again-
… Court. One of the reasons why in this paper, which again was written before the 2024 decisions and the 2024 election, where I adopt a measured, mixed assessment of the Roberts Court, is so not just that the Roberts Court’s decisions had been mixed up to that point, but also that if you looked at the historical record leading up to that, one takeaway is that the court has not been a reliable democratic guardrail. I think that is pretty clear. On the other hand, the one crisis period in which the court’s performance had been pretty good was the most recent one. And of course, the court’s power has grown over time.
So it is possible, and this I think was partly what I was thinking at the time I was writing the conclusions in this paper, it’s possible that the court has grown into a democratic guardrail role and we can see that with Brown v. Board of Education through Watergate. That’s one period of guardrail work, and maybe it would continue in that vein. So even though the current court is ideologically aligned with the Trump administration and so on abortion and affirmative action and all kinds of other issues, they’re going to rule in a conservative direction, it might be that they still have this modern guardrail orientation in their minds and it’s going to lead them to break from the Trump administration on some of these core democracy relevant cases.
So I want to say that the presidential immunity case kind of broke me of that sort of measured assessment. I really thought … There’s some brief references to that litigation in the paper and of course I was having conversations with lots of people about it at the time, and the decision came out much more pro Trump than I anticipated. I mean, after the oral arguments, I started to get worried because they sounded like they were going in that direction.
So I think what is not new is the court gets captured by or aligned with a particular partisan coalition. That’s a recurring feature of the court’s history. What’s new is continuing in that kind of vein even in the context of what I think is now fairly apparent, like democratic backslide. Our institutions are not in good health and yet we’re still going to rule in favor of this administration over and over and over again. Yeah, that I think is, I don’t know, it’s never happened, but it’s unusual. Yeah.
Matt Grossmann: Yeah. Well, it’s also rare for academics like yourself to say, “Here are my red lines in advance,” and then to react based on those red lines being crossed. So that was clear in this paper. I know that you’re now working on finishing a book on the role of free speech and that you’ve also done some work on academic freedom in democratic backsliding. So tell us about that work and how it relates to these concerns.
Thomas Keck: For sure. So one recurring feature of democratic backsliding globally is undermining of free expression. I mean, it’s pretty clear across nationally when autocratic leaders come to power, one of the things they start doing is cracking down on independent media, opposition political speech, political protest, academic freedom, and the like.
Another recurring feature of democratic backsliding is spikes in extremist speech. So hate speech, incitement of political violence, false claims about the operation of the country’s election machinery that undermine or potentially undermine free and fair elections and sometimes lead to violent efforts to overthrow election results. That’s also a recurring feature of democratic backsliding.
And so I’m almost finished with a book manuscript that’s looking at a variety of courts around the world and how they’ve responded to recurring free expression disputes under conditions of democratic backsliding. And the big challenge for courts is that on the one hand, if courts are supposed to act as democratic guardrails, we probably want them doing whatever they can to continue to protect civil liberties in the face of efforts by an autocratic executive to curtail them.
On the other hand, if one of the contributing factors leading to democratic backsliding is spikes in hate speech and incitement of election violence and all these kinds of things, we might also want some democratic countries say they want controls on speech that directly threatens the survival of the democratic order, and how courts are supposed to navigate that line is of course normatively challenging. And so what I’m doing is like looking at actual, I got data on about 3000 expression decisions from around the world and looking at how courts in actual practice try to navigate those dilemmas.
Matt Grossmann: So we’ve heard the broad context. What about evidence from Supreme Court election law cases themselves? For that, we turn to Albert Rivera. So tell us about the findings and takeaways from your new article on election cases at the Supreme Court.
Albert Rivero: Thank you. So my impetus for writing this was I’ve long been interested in election law cases and political scientists have too. I think ever since Bush v. Gore, there’s been this interest in whether the justices are partisan in their voting patterns in these cases. So Bush v. Gore itself, we have a majority that’s all Republican appointed justices. On the key remedial ruling, the dissenters are two Democrats, two justices appointed by Republicans, but who everybody at the time thought that their general worldviews were more aligned with Democrats. They end up retiring during a Democratic administration. That’s Stevens and Souter. So political scientists have shown, I think quite convincingly, that yes, you can predict the justices’ voting behavior in these kind of cases, at least to some extent, using partisanship.
What I don’t think that we knew was whether these cases are distinctively partisan, right? There are other types of cases where we see the justices dividing along these conventional partisan lines. Is there something special about election law cases? Are they just like everything else?
So what I do in this paper is I compare what I call partisan conforming voting. So a partisan conforming vote would be a justice whose views align with the Democratic Party casting a liberal vote, justice whose views align with the Republican Party casting a conservative vote. So comparing that between election law cases and other cases, and I run a series of regressions where I try to control for the various factors that we think lead to ideological divisions on the court, and I find that even after controlling for these factors, we do see overall from the Warren Court to today, a greater rate of partisan conforming voting in election law cases.
Matt Grossmann: So tell us both sort of formally what’s an election law case in your data, but then kind of theoretically why we should expect these cases to be different or how they differ from just a general case with partisan implications.
Albert Rivero: Absolutely. So first, what counts as an election law case, I’m taking a pretty broad approach. So I’m using the Supreme Court database hosted at Penn State, which political scientists have been using for a long time. And I start with their coding of the topic of the case. I include anything that’s about voting, reapportionment, voting rights, campaign spending. And then I do further investigations to add more cases that they are not counting but that are in fact about these issues.
So it’s a pretty broad array of cases under a series of legal stat frameworks, so like the Voting Rights Act, the Constitution, various campaigns’ spending laws. I think that there are a couple of reasons that we might expect these to be more ideologically charged. One would be that there’s nothing distinctive about them, but these are about civil rights and civil liberties issues, which tend to be more ideologically polarizing. They’re highly salient. These are issues where we see, for instance, lower court judges disagreeing a lot and that tends to predict that the Supreme Court justices are going to disagree a lot.
But I think there’s also reason to expect that there’s something distinctive about them because of their very topic, that they are presenting partisan cues to the justices in a way that other cases don’t. They’re kind of priming partisanship in the justices’ minds. Not that this would mean that the justices are going to be consciously thinking, “How can I benefit the Democrats or how can I benefit the Republicans?” But this will kind of cue longstanding disagreements that Republicans and Democrats have about how to deal with elections and that the justices are going to be motivated accordingly.
Matt Grossmann: So that seems maybe a little bit less distressing of an interpretation than that this is kind of an active effort to instill party power and that that’s why you might see a difference. So talk me through your interpretation and alternative ways of seeing your results.
Albert Rivero: Yeah, absolutely. So I should say that I can’t get into the justices’ heads. Maybe they are waking up and thinking about how they can benefit their preferred party. But I think that in some ways you can almost see it as more insidious if it’s not that, that it’s because you could imagine just putting on different justices might change things if you have justices who are really motivated by partisanship in a conscious way. But if everybody is thinking this way because of motivated reasoning, it’s a lot harder to quash.
I should say that part of the reason that I expect or suspect that it’s not this conscious motivation is I do look at presidential election years compared to other years. We’re not seeing a heightening of partisan voting in these years that are really queuing particular fights between candidates compared to other years. But we do see, for instance, that the justices seem to have longstanding views that are tracking the views of the political party.
So a lot of reporters have noted, for instance, that Chief Justice John Roberts, he had very critical views of the Voting Rights Act way back when he was a lawyer working for the Justice Department and now that is what the majority on the court is reading into the law. So these seem to be pretty deep-seated divisions between the justices on how they think about these issues.
Matt Grossmann: So you also find that the difference between election law cases and other cases doesn’t hold after, in the most recent era after Gorsuch’s appointment, but that’s because basically all the other cases have become more partisan. So how do you interpret that? I assume it’s not that the partisanship has directly bled from the election law cases to elsewhere, but how should we think about that?
Albert Rivero: So this is, I think, a kind of downstream of greater politicization of the court. So Gorsuch comes on right before Kennedy retires then in the next year. That’s the last justice who we think of as routinely maybe going against what we think of as the justices’ ideological predispositions. So yes, I’m not seeing any more this distinction between election law cases and other cases, but I think it’s because we’re seeing a tick up in what’s going on in these other cases.
Think about cases like Dobbs, where the six justices who would uphold the 15-week abortion ban are all Republicans, the three justices who would strike it down are Democrats. So I think that the court is just more polarized now. Of course, this doesn’t mean that every single case is being decided in this six to three partisan manner, but that we’re just seeing more of that kind of voting than we did in the past.
Matt Grossmann: On the other side, there might be a case that you’re understating the continuing difference that might be visible in the most recent voting rights trajectory, where maybe it was a small number of cases, maybe they were related to other cases, but the court really does seem to be in this election intervening just in time for states to change their districts in a way that benefits the parties and with partisan voting patterns that maybe look closer to Bush v. Gore, where the judges change their reasoning based on outcomes. Is there merit in that argument?
Albert Rivero: So certainly we are seeing a clear partisan split in the way that the court has recently treated Section Two of the Voting Rights Act. We are seeing this in the context of an election year. We’re seeing the court intervening in a way that is going to have immediate impact on this election, whereas if they had changed their timing of the ruling, that might not have been the case. So this is certainly in line with more broadly what I see in the paper, that you see higher rates of partisan conforming voting in these cases.
Obviously, this is not in my data, so it’s possible that the lack of a gap that I’m seeing between election law cases and everything else, maybe this will reassert itself, but I don’t know. You have to see what happens in the other cases too. Maybe we’ll see high rates of partisan conforming voting in other cases. I don’t know, this is a…
… voting in other cases. I don’t know, this is a midterm election year. Obviously a lot of these cases come up in midterm election years, but I do think that we see this happening in other… When cases come up in non-election years as well. I’m not sure this case would’ve turned out any differently had it happened to come up at another time. The question is, is the court strategically playing with the timing in order to have a particular impact? That’s actually something that I don’t study in the paper. Are they manipulating the timing in any particular way? I think that would be an interesting thing to try to explore because that could be another way in which the courts might be treating these cases differently, potentially, from the way they’re treating other cases.
Matt Grossmann: You also study how the public views these legal debates and the extent to which they care about the justifications that are made and sort of how that relates to how the court is viewed by the public. So relate that to what we’re talking about here. On the one hand, partisan voting being kind of the norm on the court now might mean that these kinds of cases are no more likely to… The public might just think the court is more partisan overall. On the other hand, seeing these cases right now without as much knowledge of the justification might be enough to move some people over further to the line that the court is just a partisan institution. So how should we think about that?
Albert Rivero: This is a great question. I have a couple of thoughts about this. One is whether the court could kind of convince people that it’s not being partisan when you’re seeing these partisan splits, you’re seeing decisions that are clearly going to benefit one party going into the midterms. So I have worked with co-author Andrew Stone, which suggests that yes, on the margins, I think that people can be convinced that a decision that seems to be justified based on legal principles that sound good to a particular respondent, that can help convince people that that decision is better than they would otherwise think. I think the caveat is though that people are really polarized on their views of legal principles like elites are, absolutely. Because you see, for instance, originalism has been this big success of the conservative legal movement. You have a lot fewer liberal originalists floating around.
So if people are listening to the messages, for instance, that happen about nominees to the Supreme Court or they hear a discussion of the Supreme Court’s cases. Some people will hear maybe justifications that they like, but some people hear justifications that they don’t like and that’s going to be correlated with partisanship. So I suspect that for the most part, if you hear, for instance, an originalist argument justifying a conservative decision, you’re kind of playing to the choir there, you’re not going to be picking up more support than you would otherwise have.
So I think there’s certainly the possibility for the court to try to convince people that what it’s doing is not partisan, but I think it’s difficult to imagine that this is going to work very well in these sort of cases. Also, to your point about what does this mean in just a world where we’re seeing all of the Republicans appointed on the court being conservative, more conservative than all of the liberals who were appointed by Democrats. I think that it’s this kind of overall partisan split that’s probably going to harm the court’s standing more than anything that says peculiar to election cases. So take Bush v. Gore, for instance, people were really interested at the time, would this destroy the court’s legitimacy in the eyes of the public? A lot of researchers looked into this and it seems like the answer is no because Gore supporters didn’t like the decision, but Bush supporters did.
It all kind of washed out in the end. And actually in my data where we’re seeing in the Rehnquist Court, actually pretty big partisan divisions in these election law disputes, the court’s overall standing with the public seemed to be pretty good. Where we’re seeing the decline in recent years seems to be where you’re getting just this overall impression that, oh, maybe the court is not that different from other political actors. And once people start thinking of the court in that way, I think it becomes a lot harder for the court to convince people that it’s doing something special.
Matt Grossmann: So you also have a paper on consensus being important on the Supreme Court in influencing the public. Obviously we have somewhat less of that, but it can happen. You also have some work on the lower courts and I’m wondering whether the consensus logic might apply there as well, that now that it’s very hard to get all the courts everywhere to be on the same page even when something seems that there was a clear violation by the president or something should be illegal. How is that likely to change how the public responds?
Albert Rivero: Absolutely. So this is a working paper that I have with Joshua Boston, Christopher Krusen, Marcy Shea, and Andrew Stone. We’re looking at this idea of consensus cues in the context of Trump v. Anderson. So this is a case that feels like it was a long time ago now, but only a couple of years ago was about whether Donald Trump could be excluded from the Republican primary ballot in Colorado on the grounds that he was not eligible to the Office of the Presidency under the 14th Amendment because he’d engage in insurrection against the United States. The Supreme Court ended up rejecting what Colorado had done and we were curious what the public would think about this because we had some panel data surveying people before and after the decision. And as you’d expect, there were sharp partisan divisions in what people wanted out of this case.
Democrats wanted Trump off the ballot, Republicans wanted Trump on the ballot. And then this decision happens, which is on the bottom line unanimous at the Supreme Court. There’s actually, I think, a pretty important division between the Liberals and Barrett on the one hand and the other justices and some of the details, but that’s something that people might be less likely to learn about in reporting. And we were wondering, how does this consensus among the justices affect how people think about the case? And what we find is indeed Democrats didn’t like the decision. They reduced their evaluations of the court afterwards and Republicans increased their evaluations of the court, but the increase among Republicans was really big. They really loved the decision. And for Democrats, it was kind of muted. We think that that reflects the elite cues that, okay, the liberal justices in the Supreme Court didn’t even dissent. We looked at congressional messaging, for instance, about this decision and Republican members of Congress were talking about how great it was all the time and Democratic members of Congress were kind of staying back and not issuing messages.
I think that that has some impact. Now it’s an impact at the margins. It didn’t make Democrats like the decision. They still didn’t like it, but maybe it meant that they didn’t dislike it as much. Turning to the lower courts, I mean, the lower courts are quite polarized right now as well. I have worked with Michael Olson that suggests, for instance, that district court judges though are constrained by the appellate court judges above them. So these judges aren’t quite as free to do what they want as Supreme Court justices are. So one of the things that was really striking about this recent decision, Louisiana against Callais is that the Supreme Court was changing its doctrine about the Voting Rights Act that it had been following for 40 years. So the Supreme Court had been doing things one way for a really long time. They just decided in this case they’re going to do things another way.
Lower courts have a little bit less flexibility to do that. In particular, they have to follow the Supreme Court’s doctrinal statements and each Circuit Court of Appeals has its own doctrines that they develop. So I suspect if you’re going to do the comparison, which I haven’t done directly, that we would see the lower courts being somewhat more constrained in these cases than the Supreme Court is. But at the same time, the lower courts are getting more polarized and ultimately the sanction as a lower court judge is that you get reversed if you issue a decision that a higher court thinks is wrong. Some judges might not mind being reversed if they think, for instance, that it’s signaling to the president that I’m going to be a real fighter, you should appoint me to the next vacancy. So it’s a little unclear what we should expect, but probably somewhat more constraints than we would see at the Supreme Court level.
Matt Grossmann: Is there anything that we didn’t get to that you wanted to include or anything you’re working on now that you want to tell?
Albert Rivero: Well, so one thing I wanted to highlight piggybacking off of what I just said is that I think people need to be looking now at what’s happening at the state court level in these election law cases specifically, because part of what the cumulative effect of what the Supreme Court has done is that there are a lot of claims now that are just kind of dead at the federal level. It’s really hard to imagine successful Voting Rights Act suits. There’s nothing you can say about partisan gerrymandering, but people are going to be making different sorts of arguments based on state law. I live in Virginia where the Virginia Supreme Court just had a really significant intervention into our election where there had been a referendum passed by the voters that approved a map that would’ve substantially benefited Democrats on procedural grounds. The Virginia Supreme Court in a four to three decisions said this was no good.
It didn’t conform with the Virginia constitution. I think we’re going to see a lot of legal fights in the state courts and I think people should be looking at that. In terms of my own work, I want to highlight that with Andy Stone, we’ve been expanding our work about legal principles and what the public thinks about this to a book length project where we catalog the broader public conversation about law and the court. How is it that, for instance, nominees are discussed in terms of legal principles, how is it that the media reports on this, and how is it that certain legal principles get associated with certain political views in public discussion in a way that attentive members of the public might begin to pick up on. So this is not out yet, but if you’re interested in it, you can keep an eye out. It’s tentatively called Principles and the Public, or The Politics of Principles actually I think is our latest version of the title.
Matt Grossmann: There’s a lot more to learn. The Science of Politics is available biweekly from the Niskanen Center, and I’m your host, Matt Grossman. If you like this discussion, hear the episodes you should check out next all linked on our website. The Supreme Court is enabling Trump’s executive power, can liberals stop Trump in the courts, how the Supreme Court shapes and is shaped by its public support, how the Federalist Society changed the Supreme Court vetting process, and will Supreme Court opinions provoke public backlash? Thanks to Thomas Keck and Albert Rivera for joining me. Please check out the U.S. Supreme Court and Democratic backsliding and partisan hacks and then listen in next time.
