February 23, 2021

MICHAEL WALSH: With Supreme Court’s Non-Decision, Citizens Must Reform Electoral System.

Monday’s non-decision to turn away a case involving “absentee” ballots that arrived up to three days after the November election as “moot,” was in fact a decision in itself, indeed the Catch-22 of Robertsian jurisprudence.

The Court had shunted aside the case (in a 4-4 decision with Roberts siding with the liberals and Amy Coney not yet confirmed) back in October, in effect inviting the plaintiffs to come back after the voting to show injury, if any. Heads, Democrats win, tails, Republicans lose. After all, Trump finally conceded, didn’t he, so what’s the problem? Case closed.

Heading into the election following the death of Justice Ruth Bader Ginsburg, conservatives liked to think that with the appointment of Barrett, the ideological split would be 6-3. And in fact, in this case they were right. All three dissenters were conservative: Thomas, Alito, and Gorsuch. The other six, including Roberts, were silent.

“The Pennsylvania Legislature established an unambiguous deadline for receiving mail-in ballots: 8 p.m. on election day,” wrote Thomas in his dissent. “Dissatisfied, the Pennsylvania Supreme Court extended that deadline by three days. The court also ordered officials to count ballots received by the new deadline even if there was no evidence—such as a postmark—that the ballots were mailed by election day… These cases provide us with an ideal opportunity to address just what authority nonlegislative officials have to set election rules, and to do so well before the next election cycle. The refusal to do so is inexplicable.”

Maybe not. What we’ve learned from Roberts is that he’s susceptible to pressure and hates conflict. In one of the most disgraceful episodes in the court’s history, Sen. Chuck Schumer, losing his cool over abortion “rights” on the steps of the Supreme Court, directly threatened Roberts’ colleagues Neil Gorsuch and Brett Kavanaugh: “I want to tell you, Gorsuch. I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price,” he said last March. “You won’t know what hit you if you go forward with these awful decisions.”

Roberts’ reaction? “Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All Members of the Court will continue to do their job, without fear or favor, from whatever quarter.”

Still, Schumer’s message came through loud a clear: vote our way or face the packing of the Court with a fistful of new justices. With the election of Joe Biden last fall, that prospect is now within reach. Elections really do have consequences.

And now here they are: two of the three judges Trump appointed to the Supreme Court have stood idly by while the Constitution’s directives for election law just got shredded. Perhaps not surprising: Kavanaugh’s tearing up during his nasty confirmation was embarrassing, and nothing he’s done since has indicated any desire for quiet payback. And so far Barrett has been a cipher.

Earlier: ‘Inexplicable:’ Alito and Thomas Dissent as Supreme Court Strikes Down Pennsylvania Election Lawsuit.

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