The Supreme Court deadlocked Monday on a challenge from Republicans to Pennsylvania's mail-in balloting procedures, allowing election officials to count mail-in ballots received up to three days after the Nov. 3 election. That's the good news. Republicans were thwarted in their effort to disenfranchise the state's voters and overthrow the decision of the state's highest court. The bad news is that the court deadlocked 4-4, meaning voting rights are hanging by a gossamer thread and that four of the justices were willing to allow a state legislature supremacy over its courts to disenfranchise voters.
Chief Justice John Roberts sided with Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan to let the state Supreme Court's decision stand, while those great originalists Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh would have stopped the vote count. They would have overruled the state supreme court—supposedly the last word on state laws in our system. There's a lot that makes this terrifying and problematic, but the immediate issue is this election and Amy Coney Barrett. The Senate is on a crash course to have her confirmed by next Monday, and her refusal in her hearings to say she would recuse herself from election cases makes it highly unlikely that she would do the right thing on the court and recuse. Given her history helping George W. Bush challenge the state of Florida in 2000, leading to his selection by the Supreme Court, and everything else that put her on the top of the extremist Federalist Society's SCOTUS wish list, there's no doubt on which side of the 4-4 divide she'd have landed.
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To be absolutely clear here, four radical Republican justices wanted to throw the election in a swing state into total chaos two weeks before Election Day, during this pandemic. That gives the green light to North Carolina's or Pennsylvania's radical Republican legislatures to take on Democratic state supreme courts in any post-election litigation and figure they could win. Trump said he wanted Barrett on the court to decide for him in any election litigation, and it looks like that's what he's going to get, with little question now that the Supreme Court and the White House would be his. That's if the vote margins in those states are narrow enough.
That's the short-term threat. The long-term threat is to voting rights in their entirety, or what's left of them. These four justices showed that they will happily intervene in states and subvert states' constitutions and laws in elections. A fifth justice would create a Supreme Court that assumes it has the power to intervene and rule on all election cases and to undermine state constitutions that guarantee and protect the right of every citizen to vote. As long as there is a 5-4 conservative majority, it would ensure intervention and minoritarian rule on election law cases in this election, and in future elections.
The Barrett juggernaut is going to be hard to stop, but Democrats have to try. They took a stab at it yesterday, when Sen. Chuck Schumer forced a vote on new regulations to the Community Reinvestment Act under the Congressional Review Act, a privileged resolution that has to be considered, and can thus eat up floor time. That failed, and then Schumer forced a vote to adjourn the Senate until after the election. "We are not going to have business as usual here in the Senate," Schumer said. "Their abuse of the Supreme Court process means we will not have business as usual—not now, not until Republicans stop their mad dash to confirm a Supreme Court justice mere days before a presidential election."
Except that then the Democrats left the floor and did let business as usual continue. Sen. Rob Portman, acting for McConnell, immediately took over and advanced another vote on another judge, introduced a bill for a floor vote, and called for a recess and Democrats let that happen. They didn't object, they didn't force a quorum—which McConnell wouldn't have been able to achieve because four Republicans were out Monday. One Democrat needed to be there to object, to say, "I note the absence of a quorum" to freeze the Senate, to object to those unanimous consent requests and call for a quorum—51 senators in the majority—and then leave the floor and make McConnell try to round up a majority. That would force all the Republicans to have to stick around Washington. It would eat up time. It would throw a wrench in McConnell's works.
Importantly, it would get Democrats in the habit of fighting back, something that's been sorely lacking and which they're going to have to get used to, because there's a lot they're going to have to do in the first few weeks of next year when they have a majority. That includes eliminating the filibuster and expanding the Supreme Court. That's next year. This year they have to do everything they possibly can to keep Amy Coney Barrett off the court for as long as possible.
