Emory Law Journal


Once upon a time, the right to vote was held by the Supreme Court to be among the most precious of the rights protected by the Constitution, on which all other rights were dependent for their existence. Protection of the right to vote was not a partisan issue. Some of the leading defenders of the right to vote—including Justices Brennan, Powell, Stevens, and Kennedy—had all been appointed by Republican Presidents. As the confirmation process of federal judges by the Senate has become increasingly partisan, so have the decisions of the Supreme Court. The partisan divide has been particularly evident in the Court’s campaign finance and election law cases, which have, to an increasing degree, been decided along partisan lines of the Supreme Court. These cases illustrate that the United States is very much a government of men (and women) and not of laws, and that Chief Justice Roberts’ claims that the Justices of the Court are impartial umpires and that there are no Republican Justices or Democratic Justices are myths. No case is a better illustration of the partisan trend in the Supreme Court’s election law decisions than Rucho v. Common Cause. In a 5-4 party-line vote, the Court disregarded thirty years of Supreme Court precedent and held for the first time that partisan gerrymandering is a political question beyond both the competence and the jurisdiction of the federal courts. The majority opinion was authored by Chief Justice Roberts, whose entire opinion was based on a misrepresentation of the constitutional basis of the plaintiffs’ claims. The Chief Justice also misrepresented the Court’s prior precedents and disregarded the factual findings and undisputed evidence of the effectiveness of partisan gerrymandering in favoring candidates and dictating electoral outcomes. The majority opinion is both contradictory and hypocritical. While the Chief Justice self-righteously insisted that the Court was not condoning partisan gerrymandering and conceded that partisan gerrymandering is “incompatible with democratic institutions” and “leads to results that reasonably seem unjust,” the Chief Justice, nevertheless, endorsed the constitutionality of partisan gerrymandering—the very issue that the Court had just held it had no jurisdiction to decide.

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