Although the timing was coincidental, it was telling that this week’s rulings came just days after more than 80 percent of House Republicans voted for legislation that would have imposed the largest reduction in legal immigration since the 1920s. (Earlier this year, almost three-fourths of Senate Republicans voted for comparable reductions.) The rulings also dropped amid the firestorm over Trump’s policy of methodically separating children from their undocumented parents at the border—an initiative now suspended by his own executive order and a lower-court injunction, but not definitively abandoned.
Against that backdrop of Republican executive and legislative actions, the flurry of 5–4 party-line decisions made the Supreme Court look like just one more front in the widening cold war between what America has been and what it is becoming—what I’ve called the Republican “coalition of restoration” and the Democratic “coalition of transformation.” “For the public to have confidence in the Supreme Court, we want to feel the justices are fairly and independently wrestling with the cases before them,” said Kristen Clarke, the president and executive director of the Lawyers’ Committee for Civil Rights Under Law, in an interview. “And, sadly, these last few weeks have felt both predictable and polarizing.”
The election-related decisions will most immediately affect other cases involving voting rights. Since the GOP sweep in the 2010 midterms, legislators in 23 states, almost all of them Republican-leaning, have imposed new restrictions on access to voting, according to the Brennan Center for Justice at New York University. The most common of these limits has been stringent voter-identification laws that tend to disqualify more minority than white voters, but they have also included constraints on registration, early voting, and absentee voting.
So far, voting-rights advocates have held their own in litigation, with lower federal courts striking down many of the most egregious state restrictions. But this month, the Supreme Court not only upheld the Ohio purge law and Texas’s map, but also avoided substantive rulings on cases from Wisconsin, Maryland, and North Carolina that advocates had hoped would limit partisan gerrymandering. “When you add them all up, there is a scrupulous deference on the part of the [Supreme Court] majority for the most malevolent motives of state legislators,” said Michael Waldman, the president of the Brennan Center. “And there is far greater concern for the dignity of state legislators than the dignity of voters.”
This month’s decisions will curtail the legal options for contesting red-state voter restrictions. When the conservative Fifth Circuit upheld Texas’s latest voter-ID law in April, civil-rights advocates immediately talked about appealing to the Supreme Court. But now it appears more likely they will let the decision stand—for fear of allowing the five Republican-appointed justices to set a permissive standard that encourages other states to impose similar requirements. Even that tactical retreat may encourage Republican state legislatures to pursue more voting restrictions.