Cohen’s account emphasizes the court’s inegalitarian streak. But the story of the court in the last half-century is more about partisanship than inequality. Cohen notes, for example, an “unmistakable partisan slant to the Court’s major election law rulings since 2000.” In 2019, the court upheld partisan gerrymandering arrangements, mostly to the benefit of the demographically challenged Republican Party. In 2013, the court struck down a critical part of the Voting Rights Act, which in turn unleashed a new cycle of exclusionary voter ID laws and purges of voters from the state election rolls. The court has specifically upheld voter ID laws (in 2008) and election roll purges (in 2018), both of which are widely understood to work to the Republican Party’s advantage.
Viewed from this partisan perspective, much of the court’s recent history falls into place. Janus v. American Federation of State, County, and Municipal Employees, Council 31, decided in 2018, disrupted the collection of public employee union membership dues. A novel First Amendment theory advanced by Justice Samuel Alito concluded that mandatory employee dues violated the First Amendment rights of state employees. The theory promises to hamstring a key Democratic Party constituency and prompted Justice Elena Kagan (an Obama appointee) to complain that the court was “weaponizing the First Amendment” for political purposes.
Republican Party constituencies, by contrast, have been big winners. Beginning in District of Columbia v. Heller, decided in 2008, the court’s conservative justices helped reinforce the loyalty of single-issue gun-rights voters for the Republican Party. Since the beginnings of the Nixon court, the votes of Republican appointees to the court have aligned with emerging Republican Party positions on law-and-order policing, the retrenchment of welfare policies, opposition to affirmative action, resistance to labor unions, skepticism of litigation, and rolling back voting rights. Parts of the court’s jurisprudence have even supported the Republican Party in unexpected ways: For nearly 50 years, Roe v. Wade (though increasingly tattered) has allowed the Republican Party to rail against abortion rights, safe in the knowledge that its unpopular position is unattainable. If Roe is overturned, the Republican coalition may be harder to keep together.
And when the Republican Party splits over some issue, as it does today in the area of criminal justice policy, the partisan alignments on the court scramble accordingly. The late Justice Scalia, for example, sometimes joined his liberal colleagues in opposition to what he called the panopticon state. His replacement, Neil Gorsuch, is widely expected to do the same.
The case that best symbolizes 50 years of adjudication is not one of the poverty cases from the 1960s and 1970s on which Cohen focuses his attention, but rather Bush v. Gore, in which the court halted the vote recount in Florida during the disputed presidential election of 2000 and swung the election to Republican candidate George W. Bush. As Cohen notes, the decision’s aggressive holding was out of step with positions Republican-appointed justices had adopted for a generation. The majority insisted weakly that its holding was “limited to the present circumstances” and not relevant to the decision of other cases. In an irony not lost on many, the partisan logic of the Bush v. Gore case holds the master code to a half-century of the court’s history.