This excerpt is from a piece that originally ran on July 14, 2023.
When asked why many of the Court’s conservative justices sided with the three liberals in the voting and election cases, reactions were mixed. Some felt that the voting rights and elections cases were simply too extreme, even for an extremely conservative Court. U.S. Rep. Hank Johnson (D-Ga.) told Democracy Docket that the Moore case was “so outlandish” that the Court “summarily disposed of it once and for all.” Rebecca Buckwalter-Poza, of the progressive judicial advocacy group Alliance for Justice, similarly described the cases as “pretty extreme outliers in the genre of voting and democracy cases.” In a statement to Democracy Docket, U.S. Sen. Sheldon Whitehouse (D-R.I.) was blunt, saying: “A few of the FedSoc justices evaded truly wingnut legal theories in Moore v. Harper or blatant racial gerrymandering in Allen v. Milligan.”
Others hypothesized that the Court made a strategic decision, deciding these two cases with public opinion in mind. Recent polling shows the Court has historically low job approval, with Quinnipiac University reporting that the Court is 20 points underwater among voters. Buckwalter-Poza argued that the Court “realizes it is facing a major legitimacy crisis” and that factored into the decisions, an idea echoed by Neil Malhotra, a political economy professor at Stanford University. In a statement to Democracy Docket, Malhotra focused on the strategy employed by Chief Justice John Roberts and Justice Brett Kavanaugh, arguing that the justices “care very much about issues like affirmative action and religious liberty, so they maybe need[ed] to find other issues where they are more willing to compromise on.”