Judicious invention: flexible application of judicial doctrine in the Roberts Court’s voting rights jurisprudence

Abstract

ABSTRACT The Roberts Court has issued several important voting rights decisions in the past decade that have enabled voting restrictions at the state and local level. This essay examines two of them, Shelby County v. Holder (2013) and Husted v. A. Philip Randolph Institute (2018). By juxtaposing the reasoning patterns of the majority opinions in Shelby County and Husted, I explore how the majorities in both cases utilized the flexibility of judicial doctrines as sites of invention. Chief Justice Roberts’ opinion in Shelby County combined arguments from circumstance with appeals to stare decisis, whereas Justice Alito’s opinion in Husted relied on a textualist argument. Comparing these approaches illustrates how jurists can flexibly apply judicial philosophies as inventional tools to achieve a desired result in high profile cases. This essay reveals how an understanding of the Supreme Court’s argument invention practices can complement attitudinal and strategic theories of judicial decision-making.