Justice Ginsburg said that approach trivialized “a matter of utmost importance.”
The contrasting visions of the two sides, one viewing the case as minor and technical and the other as an effort to vindicate a fundamental constitutional value, amounted to a deep disagreement about the judicial role in voting rights cases.
In public comments, Chief Justice John G. Roberts Jr. often insists that the justices “don’t work as Democrats or Republicans.” But he and his fellow Republican appointees have frequently voted to restrict voting rights in ways that have primarily helped Republicans.
Chief Justice Roberts wrote the majority opinion, for instance, in Shelby County v. Holder, the 2013 voting rights decision that effectively gutted the Voting Rights Act by a 5-to-4 vote. Freed from the act’s constraints, states controlled by Republicans almost immediately started imposing an array of restrictions on voting, including voter ID laws, cutbacks on early voting and purges of voter registration rolls.
Some scholars said the public should not assume that the justices were driven by partisanship rather than their judicial philosophies.
“It’s unfortunate that both the Wisconsin and U.S. Supreme Court rulings broke down the way they did, because it lends credence to the perception that law is increasingly no different than politics,” said Ilya Shapiro, a lawyer with the Cato Institute, the libertarian group. “But the decisions weren’t partisan.”
“Republican-appointed judges tend to want to apply the law as written, while Democrat-appointed ones want to see ‘justice’ done, even if it means bending the rules,” he said. “In the Wisconsin context, Republican-affiliated judges would leave any decision to delay the election or change its operation to the Legislature, while Democrat-affiliated ones want to fix the problem themselves.”
“I agree with the former approach,” Mr. Shapiro said, “because, even in a pandemic, we shouldn’t cast aside the rule of law or the separation of powers.”