Vol. 31 No. 7 (August 2021) pp. 115-117PARTISAN SUPREMACY: HOW THE G.O.P. ENLISTED COURTS TO RIG AMERICA’S ELECTION RULES, by Terri Jennings Peretti. Lawrence, KS: University Press of Kansas, 2020. 374pp. Hardback $39.95. ISBN: 978-0-7006-3019-6.
Reviewed by Justin J. Wert, Department of Political Science, University of Oklahoma. Email: jwert@ou.edu.
Terri Peretti’s new and compelling book could not have been published at a more important time. Threats to democracy in the United States and abroad have been gaining momentum for more than a decade, and the election – and definite defeat – of Donald Trump should serve to remind us that these anti-democratic blocs are both real and resilient. But how, exactly, have they risen to power, how do they work in practice, and how do they sustain their power? This last question is the central question of the book, particularly in the areas of election law – the demise of the 1965 Voting Rights Act (and its subsequent amendments), voter identification laws, battles over redistricting, and campaign finance laws. It is in these areas (as in others) that the modern Republican Party has used judges that they have appointed as friendly regime partners to build and sustain its political power. Ultimately, Peretti is hopeful that political mobilization will stifle threats to democracy in these areas, but hers is a long term hope, for in the short term she unfortunately (but I would argue correctly), sees these battles only increasing.
Peretti frames her analysis of the modern Republican regime’s use and abuse of election law broadly understood in her Introduction through the lens of regime politics theory. Starting with Robert Dahl’s seminal 1957 article, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” scholars advancing the regime politics model argue that understanding courts requires understanding their relationships with the larger governing coalitions that appoint their members, the regimes in which they exist, and, maybe most importantly, the effects life tenure has on the makeup and output of court majorities at particular periods in American political history. The decisions of the Warren Court (1953-1969), for example, are best understood not only as legal outputs but also as political outputs, for they advanced the agenda of the New Deal/Great Society Democratic Regime. From voting rights to criminal procedure to race to freedom of press, the decisions of the Warren Court reflected the larger political and policy commitments of the mid-century Democratic Party. In this sense, then, federal courts should not be seen solely as neutral arbiters of legal and constitutional questions but as equal governing partners of the parties that appoint them. This was why Dahl argued that the Supreme Court was more often than not in tune with political majorities and could therefore be understood as a “policy-maker.” When we consider that Presidents nominate federal judges and Senate majorities confirm them for life, we should not be surprised that over time Supreme Court majorities will form and judicial outputs (decisions) will be produced that broadly represent the policy preferences of the parties that appointed them. We can see this phenomenon in identifiable periods, particularly during the Marshall Court, The Taney Court, the Warren Court, and the New Right Regime beginning with the election of Ronald Reagan in 1980. This does not mean, however, that the Supreme Court is simply the handmaiden of the elected branches and their [*116] party apparatus, for we also see courts acting independently of the regime that appointed them at certain times and in certain doctrinal areas. The norm of judicial independence combined with a perceived threat to courts’ ability to rule in certain areas in the future will often spur justices to protect their independence (Keck 2007; Wert 2011). This last feature of regime theory is an important part of Peretti’s analysis.
In the first substantive chapter examining the Court’s election law jurisprudence, Peretti explores the Court’s Voting Rights Act decisions, particularly its decision in SHELBY COUNTY V. HOLDER (2013) This momentous decision invalidated section 4 of the Act which provided a formula for identifying which jurisdictions in the United States would be subject to the preclearance requirements of section 5. These jurisdictions would need federal approval, or “preclearance,” for making any changes to voting procedures. The opinion represents a decades-long goal of the Republican Party to water down or even eliminate the Warren Court’s voting rights jurisprudence. It also represents a long-standing position of Chief Justice John Roberts, who in the early 1980’s as a clerk to then Chief Justice Rehnquist railed against the federalism implications of the Voting Rights Act. As we know, immediately after the decision was announced, Republican controlled state legislatures passed a slew of restrictive voting laws in the very areas that fell within the coverage areas of the Act. In this way, the decision can best be understood as the Court acting as a partner within the larger New Right Regime. Importantly, too, considering the fact that the Act was regularly renewed, passed, and signed by the elected branches within that regime, the Court can also be seen as acting when the elected wing could not.
Chapter 3 examines voter identification laws generally and CRAWFORD V. MARION COUNTY ELECTION BOARD (2008), in particular. CRAWFORD upheld Indiana’s restrictive voter ID laws, with Republican-appointed justices arguing that Indiana’s legitimate interest in preventing voting fraud outweighed minor burdens on voting rights, like ID requirements. The case also demonstrates how the New Right Regime’s larger election law program was well underway before SHELBY COUNTY. Peretti details the partisan linkages quite nicely in an original data set of voter ID cases from 2005 to 2015, showing that three quarters of Republican appointed judges supported the decision and subsequent cases while only one quarter of Democratically appointed judges did so. The role of the executive branch is nicely detailed in this regard, as well. She shows how the Justice Department within the administration of George W. Bush precleared Georgia’s restrictive voter ID laws in 2005 and aggressively pursued dubious voter fraud cases. Voter ID laws are particularly important to the entrenchment of the Republican Party’s control of state legislatures, and Republican appointed justices have consistently aided in the long-term maintenance of the Party in state legislatures. Peretti, however, does not argue that Voter ID laws are simply partisan efforts by partisan judges. There are other factors at work that complicate a simple partisan explanation for judicial decision making, and this Chapter is especially recommended to those who want to delve further into the nuances of Regime Theory.
Similar to voter ID laws, Chapter 4’s examination of redistricting allows Peretti to further parse Regime Theory. She argues that Judges are not simply acting in lock-step with their partisan allies, although the effects of their decisions might [*117] ultimately be favored by partisans. Instead, because redistricting, like the Voting Rights Act, is not often directly and squarely addressed by parties, judges have more latitude to rule in ways that reflect their judicial philosophies more so than their partisan sympathies. Redistricting is not really addressed in Party platforms, and taking public positions against the Voting Rights Act is not politically popular. Therefore, while Court majorities appointed by regimes are still affiliated, they more often sort themselves along different lines – lines of judicial philosophy.
The last area of voting laws that Peretti examines are in the murky area of campaign finance. Unlike voter ID and redistricting, this area is more squarely partisan and likely will continue in this direction. The Reagan Regime’s shaky electoral foundations nationally have spurred the New Right Regime to become aggressively protective and even activist with respect to campaign finance deregulation. In this way, campaign finance is a critical part of its future electoral prospects.
Overall, Peretti’s work is an important contribution to regime theory, judicial decision making, and the history of the Republican Party’s use of friendly federal court majorities. I highly recommend the book.
CASES:
CRAWFORD V. MARION COUNTY ELECTION BOARD, 553 U.S. 181 (2008).
SHELBY COUNTY V. HOLDER, 570 U.S. 529 (2013).
REFERENCES:
Dahl, Robert. A. 1957. Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker Policy Making in a Democracy: The Role of the United States Supreme Court: Role of the Supreme Court Symposium, No. 1. JOURNAL OF PUBLIC LAW. 6(2): 279–295.
Keck, Thomas. M. 2007. Party, Policy, or Duty: Why Does the Supreme Court Invalidate Federal Statutes? THE AMERICAN POLITICAL SCIENCE REVIEW. 101(2): 321–338.
Wert, Justin. J. 2011. HABEAS CORPUS IN AMERICA: THE POLITICS OF INDIVIDUAL RIGHTS. University Press of Kansas.
© Copyright 2021 by author, Justin J. Wert.
