Cory Conley (Emory University) & Tonja Jacobi (Emory University School of Law) has posted Derailing Democracy, Shirking Responsibility: The New Election Law Landscape (Florida Law Review, Volume 76, 2024) on SSRN. Here is the abstract:
In democracy jurisprudence, the Roberts Court wears two faces. Its most recent duo of cases illustrates the inconsistency. In Rucho v. Common Cause, it ruled that even grossly-partisan gerrymanders are nonjusticiable in federal courts. Yet, in Moore v. Harper, the Court rejected granting unreviewable authority to state lawmakers to regulate federal elections-for now. This combination of rulings is not ideological moderation or judicial restraint, as the Court claims. These recent cases are emblematic of broader unpredictability and selectivity in election law. The assertions of judicial humility in Rucho stand in stark contrast to the bald activism of Citizens United and Shelby County, wherein the Court struck down large parts of campaign finance law and a vital part of the Voting Rights Act, respectively. Yet, the Court is consistent in two ways. In terms of outcomes, its democracy decisions favor anti-democratic maneuvering; and in methodological terms, the claims of judicial restraint mask a general strategy of accruing power for itself while claiming judicial humility. Thus, the Court is avoiding controversy and shirking responsibility while achieving ideologically-driven outcomes and promoting its own power. This Article reveals the variability and self-serving false modesty of the Court's jurisprudence at three levels: in the two most recent cases, in the broader democracy jurisprudence of the Roberts Court, and of the Court over time. It shows that claims of judicial restraint prevent accountability and allow the Court to evade its most vital responsibility: protecting democracy.
