Judicious invention: flexible application of judicial doctrine in the Roberts Court’s voting rights jurisprudence

ABSTRACT

The Roberts Court has issued several important voting rights decisions in the past decade that have enabled voting restrictions at the state and local level. This essay examines two of them, Shelby County v. Holder (2013) and Husted v. A. Philip Randolph Institute (2018). By juxtaposing the reasoning patterns of the majority opinions in Shelby County and Husted, I explore how the majorities in both cases utilized the flexibility of judicial doctrines as sites of invention. Chief Justice Roberts’ opinion in Shelby County combined arguments from circumstance with appeals to stare decisis, whereas Justice Alito’s opinion in Husted relied on a textualist argument. Comparing these approaches illustrates how jurists can flexibly apply judicial philosophies as inventional tools to achieve a desired result in high profile cases. This essay reveals how an understanding of the Supreme Court’s argument invention practices can complement attitudinal and strategic theories of judicial decision-making.

KEYWORDS:

• Invention
• argument
• interpretation
• hermeneutics
• judicial decision-making

Disclosure statement

No potential conflict of interest was reported by the author(s).

Correction Statement

A previous version of this essay was presented at the 2021 National Communication Association Convention in Seattle, WA.

This article has been republished with minor changes. These changes do not impact the academic content of the article.

Notes

1. Hereinafter, references to sections of statutes will be denoted by §, the symbol commonly used in legal writing.

2. The scope of §2 has since been limited by a recent Court decision, Brnovich v. Democratic National Committee (2021) which upheld an Arizona statute invalidating out-of-precinct votes and prohibiting ballot harvesting by third party groups, even though the policies disparately impacted poor and minority voters. The Brnovich Court also recognized prevention of voter fraud as a legitimate state interest and that the statute was not passed with discriminatory intent as required under §2 (but not under §5).

3. Segal and Spaeth (1993) identified three primary reasons that Supreme Court justices were unconstrainted relative to other jurists: (1) a lack of electoral or political accountability (i.e., once confirmed the justice has life tenure barring impeachment, which has happened only once in the history of the Court), (2) Lack of ambition for higher office (lower court judges are in a sense auditioning for seats on higher courts, but this does not apply to Supreme Court Justices), and 3) its decisions are non-appealable and it controls its own jurisdiction.

4. Justice Ginsburg’s dissent in Shelby County criticized Roberts’ appropriation of precedent in this way. She opined in dissent that “the Court ratchets up what was pure dictum in Northwest Austin, attributing breadth to the equal sovereignty in flat contradiction of Katzenbach (Ginsburg, J, dissenting at 2649).

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John Banister

John Banister (PhD, University of Georgia) is a Visiting Lecturer in the Department of Communication Studies at the University of Georgia. He studies the argumentation practices of the United States Supreme Court and the role of authority in technical spheres of discourse.