The Supreme Court is at a crossroads following the absurd spectacle that led to the confirmation of Justice Amy Coney Barrett and the entrenchment of a right-wing 6-3 supermajority. Those six justices, who are now most assuredly steering the vehicle, now have a choice to make. Will they consider that they were installed by a minority political faction and hold themselves accountable to the Constitution? Or will they boldly strike out through unexplored territory, aggressively intervene in the upcoming election and then begin enacting a sweeping reactionary agenda?
Their actions in the election and voting cases coming before the Court present a troubling suggestion of which path they may be contemplating. The Court has issued unsigned order after unsigned order limiting the right to vote on what has become known as the “shadow docket.” As David Gans describes in a recent American Constitution Society Issue Brief, “[t]hrough these cursory orders, the Roberts Court has been rewriting the rules of our democracy to prevent courts from vindicating the right to vote in an election year.” It is doing so with little to no stated reasoning provided, leaving election law experts and voters alike unclear on what motivated the Court’s decision.
The resulting blows to voters’ rights are no less devastating for being struck without accompanying explanation. Voters in Wisconsin will no longer have the opportunity to have their ballot counted if, through no fault of their own, it is received by their local election administrator after polls close. Vulnerable voters in Alabama can no longer limit their exposure to COVID-19 by voting curbside.
In some ways, however, almost as troubling as the decisions cited above are the views some of these justices have expressed in concurring or dissenting opinions. The common thread running through these opinions is a willingness to ignore a vast body of settled law that requires federal courts to defer to state courts in interpreting state laws and constitutions.
The most notorious of these opinions was written by Justice Brett Kavanaugh, in the Wisconsin case mentioned above. In a concurring opinion that has been widely pilloried for its numerous errors of fact and law [link], Kavanaugh makes clear he believes federal courts should have the final say in determining what a state legislature has or has not intended, even if the state courts disagree. This potential “nightmare scenario” in which a faction of the Court collaborates with right-wing state legislatures to disregard legitimate vote counts and appoint pro-Trump slates of electors would precipitate the worst constitutional crisis since the Civil War.
In the opinion, Kavanaugh also parroted partisan talking points frequently rehashed by President Trump and Fox News that ballots counted any time other than on election night might, as he put it, “flip” an election. As Justice Elena Kagan noted in her dissenting opinion “there are no results to ‘flip’ until all valid votes are counted.”
Justices Samuel Alito, in a Pennsylvania case, and Neil Gorsuch, in one arising from the election in North Carolina, each wrote opinions signaling a similar willingness to brush past precedents requiring federal courts to defer to state courts on matters of state law.
Taken together, these actions should raise alarms that the Right is actively contemplating whether circumstances will permit them to use the 6-3 Supreme Court supermajority to steal the election. We must make it clear to them that such an outrageous action would be met with an unprecedented reaction from the majority of the country. A free people are not going to bend the knee to a tribunal of judicial overlords acting in an illegitimate manner.
Given that President Trump has openly called on the Court and especially the justices he has nominated to come to his rescue and keep legally cast ballots from being counted, the President and the Court’s dominant faction are truly playing with fire. If they miscalculate, it will be the American people and the Court that will get burned.
At the very least, Justice Barrett, given the illegitimate manner in which she was just installed, must recuse herself from all election-related cases. President Trump made clear that he viewed her as a key player in his plan to disrupt and ultimately steal the election. We cannot permit her to carry out the task the President has set for her, if she is so inclined.
The Right has already propelled the Supreme Court into a perilous state. But if we have learned anything in 2020, it is that no matter how bad things are, they can always get worse. And, if the Court chooses to intervene in the election in an aggressive and illegitimate manner, they most certainly will.
It will then fall to us to save the Court, and our democracy.
