Unless the presidential election is a landslide, which is very unlikely, expect the losing party to use the courts in ways that will end up before the Supreme Court. And given the history of the Roberts Court, we should expect the justices to resolve these cases with a focus on the partisan implications of their decisions.
Political scientists who study the court are largely in agreement with this “legal realist” view. Only lawyers, legal scholars and judges might argue to the contrary. Liberal justices would likely act the same way if they controlled the court.
As I have previously documented, last term the Roberts Court decided five landmark cases — two abortion controversies, one gun case and monumental legal disputes about former President Donald Trump’s disqualification and presidential immunity — all in ways that seemed aimed at helping Trump and the GOP win the election.
Both abortion cases and the gun case were resolved in a manner few people on the left would object to — a dramatic change after the court ended affirmative action, sent abortion back to the states and issued the broadest ruling on Second Amendment rights in history in just the prior two terms. Who could have possibly expected the Roberts Court to issue liberal decisions about abortion and guns, were it not a presidential election year?
The court also fast-tracked Trump’s disqualification case and slow-walked his immunity case so that the disqualification issue would vanish quickly, which it did. The delay of the immunity case guaranteed that Trump would not have to face his remaining criminal trials before the election, if ever. Neither decision pays careful attention to text, tradition or history.
This partisan situation is especially troubling given that the Roberts Court has been consistently lecturing the American people about the importance of originalism — defined as a heavy emphasis on text, tradition and history — to constitutional interpretation. Last term, the court issued numerous important decisions that contained little or no serious analysis of those legal materials but were full of value judgments and contestable conclusions that text, history and tradition do not support.
As Sen. Sheldon Whitehouse (D-R.I.) has documented since the Roberts Court began in 2006, it has almost always ruled for the GOP in cases with electoral implications. And before that, the court had decided Bush v. Gore, which quite obviously helped Republicans, but the legal analysis in that case (to the extent there was some) has never been used again by the justices. Three of today’s conservative justices (Roberts, Brett Kavanaugh and Amy Coney Barret) were lawyers for Bush in that case.
The Roberts Court shut down the most important part of the Voting Rights Act in the Shelby County decision, obviously helping the GOP. In another decision, the conservative justices interpreted the language of that act unreasonably narrowly, also boosting the Republican Party. All the liberals dissented in these cases.
There are far too many examples of this behavior to summarize here. In most of them, the justices ignored or distorted originalist materials.
Some may argue that the Supreme Court in 2020 turned away appeals of lower court decisions brought by the Trump team trying to show that the election was stolen. But importantly, the court did not issue written decisions in those cases and let the lower courts do most of the work, which involved completely frivolous and indefensible lawsuits. The justices would not risk their personal reputations by affirming the absolute nonsense those lawsuits presented.
But this time around, according to the New York Times, the Republican lawyers are better and more organized, preparing in ways they did not in 2020. If the election is close, those cases could well be the deciding factor, as Bush v. Gore was in 2000.
No one wants to hear that the Supreme Court is a partisan body making political decisions. But that is the nature of the institution, as the once-famous satirical character Mr. Dooley observed over a century ago: “The Supreme Court follows the election returns.” The court’s behavior since then supports Mr. Dooley’s hypothesis.
It would be foolish to expect anything different in 2024 — other than the possibility that the election returns this time, as in 2000, will end up following the court, not the other way around.
Eric J. Segall is the Ashe Family Chair Professor of Law at Georgia State University College of Law.
