Eroding Voting Rights as a Threat to Judicial Independence and Impartiality

• Author: Rolland Giberson
• Position: J.D., Georgetown University Law Center (expected May 2022); B.A., Oakland University (2018)
• Pages: 977-990

Eroding Voting Rights as a Threat to Judicial

Independence and Impartiality

ROLLAND GIBERSON*

INTRODUCTION

On June 25, 2013, the United States Supreme Court handed down a five-to-

four ruling in what has become one of the most consequential cases of the

twenty-first century: Shelby County v. Holder.

1

Shelby County’s holding invali-

dated key provisions of the Voting Rights Act (VRA) of 1965, enabling the now-

widespread use of voter suppression.

2

Justice Ruth Bader Ginsberg, one of the

dissenting four, criticized the decision by claiming it was akin to “throwing away

your umbrella in a shower because you are not getting wet.”

3

The Majority

Decision was delivered by Chief Justice John Roberts, joined by Justices

Anthony Kennedy, Clarence Thomas, Antonin Scalia, and Samuel Alito.

4

Notably, Presidents who failed to win the popular vote appointed two of the

Justices sitting on the Court that handed down Shelby County.

Seven years and over 1,688 polling place closures

5

later, on October 27, 2020,

the United States Senate confirmed Justice Amy Coney Barrett’s appointment to

the Supreme Court.

6

This date marked the first time in United States history that

Presidents who lost the popular vote had appointed a majority of sitting Supreme

Court Justices.

7

It took only seven years after Shelby County for the number of

Justices appointed by presidents who lost the popular vote to expand to five, with

Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joining Chief

* J.D., Georgetown University Law Center (expected May 2022); B.A., Oakland University (2018).

© 2021, Rolland Giberson.

1. Shelby Cty v. Holder, 570 U.S. 529, 557 (2013).

2. See id.

3. Nina Totenberg, As Concerns About Voting Build, The Supreme Court Refuses To Step In, NPR (July 25,

2020), https://www.npr.org/2020/07/25/895185355/as-concerns-about-voting-build-the-supreme-court-refuses-

to-step-in [https://perma.cc/L2NB-C6D4].

4. See id.

5. Democracy Diverted: Polling Place Closures and the Right to Vote, LEADERSHIP CONF. ON CIV. & HUM.

RTS. (Sept. 2019), https://civilrights.org/democracy-diverted/ [https://perma.cc/WB3T-4ARB] [hereinafter

Democracy Diverted].

6. See Joan Biskupic, Amy Coney Barrett Joins the Supreme Court in Unprecedented Times, CNN (Oct. 27,

2020), https://www.cnn.com/2020/10/27/politics/amy-coney-barrett-joins-supreme-court-unprecedented/index.

html [https://perma.cc/PJ9T-FCER].

7. See 50% of Supreme Court Justices Appointed by Presidents Who Lost the Popular Vote, FACTPAC,

https://factpac.org/50-of-supreme-court-justices-appointed-by-presidents-that-lost-the-popular-vote/ [https://

perma.cc/DP9Z-UTZ2] (last visited Nov. 15, 2020).

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