Andrew McCarthy: Rolling the Dice on Chaos, Supreme Court Ducks Election-Law Cases Court-packing threats by the Left have intimidated moderate, politically minded justices.
https://www.nationalreview.com/2020/10/rolling-the-dice-on-chaos-the-supreme-cou
T here’s one thing we’ve forgotten to mention about political intimidation of the Supreme Court. It works.
On the right, and among those who respect history, tradition, and stability, Franklin Delano Roosevelt’s Court-packing gambit is remembered as a welcome rejection of radicalism: At the pinnacle of his influence, the most powerful president of the 20th century could not prevail on his scheme to expand the Court and fill it with like-minded, politically willful progressives, even though his party controlled both houses of Congress by decisive margins.
Yet, on the left, and especially among Alinskyites schooled in the extortionate leveraging of power, the Court-packing threat is remembered as a triumph. It provoked the famous “switch in time that saved nine”: Fearful that FDR would follow through and destroy the Court’s standing as a rule-of-law institution, the Court — led by Justice Owen Roberts — dramatically shifted, upholding the New Deal it had been stalling, and ushering in the foundations of progressive governance.
Credible Court-packing threats by the Left intimidate moderate, politically minded justices, exactly as they are meant to do.
Duly cowed by today’s Court-packing threats, Chief Justice John Roberts has steered the Court into a possible disaster that has been foreseeable (and foreseen) for weeks. Last night, the justices made clear that they will not resolve state voting-law disputes prior to next Tuesday’s election. They will roll the dice on chaos, and all its potentially ruinous ramifications — not just for the country but for the Court.
In a pair of 5–3 decisions, with the newly minted Justice Amy Coney Barrett intriguingly keeping to the sidelines, the justices declined to intervene in the Pennsylvania election case despite the patent lawlessness of the rewrite by that state’s highest court — which could enable fraud by requiring non-postmarked ballots to be counted for three days after the November 3 election is supposed to be over. Nor will the Supreme Court intervene in a North Carolina election-law case that is nearly as egregious: one in which an unaccountable bureaucracy, the State Board of Elections, has presumed to rewrite state law by extending until nine days after the election the deadline for receiving ballots (although those ballots must be postmarked by or before November 3).
The Court stayed its hand in the North Carolina case, Moore v. Circosta, even though, as Justice Neil Gorsuch points out in dissent, “Just days ago, this Court rejected a similar effort to rewrite a state legislature’s election deadlines” in Democratic National Committee v. Wisconsin State Legislature. Justice Gorsuch was joined in his Moore dissent by Justice Samuel Alito; separately, Justice Clarence Thomas noted that he, too, disagreed with the majority’s abdication.
These same three conservative justices have also been poised for weeks to act in the Pennsylvania case. But while there was still time to act, they were blocked by Roberts and the Court’s three-justice liberal bloc (Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan). Now, as Alito “reluctantly” concluded in a statement joined by Thomas and Gorsuch and issued last night, it is simply too late to rule just five days before the election.
Notably, in both the Pennsylvania and North Carolina cases, Justice Brett Kavanaugh has abandoned his three fellow conservatives — even though he sided with them just ten days ago in the Pennsylvania case, only to be stymied when Roberts joined with the three liberals to cause a 4–4 deadlock, which allowed the state court’s lawlessness to stand. Equally notable is Justice Barrett’s aforementioned decision not to participate in the two cases — for now, apparently, on the rationale that she hasn’t had adequate time to prepare, notwithstanding that she was sworn in on Tuesday, the cases are not complex, and she is a notoriously brilliant and hard-working jurist.
So what’s going on here? I believe the Court has been intimidated into paralysis by the media-Democrat complex.
The justices hear the Court-packing drumbeat. They hear former vice president Biden’s cockamamie suggestion that justices could be rotated out of the high court, and his announcement that, if elected next week, he would appoint a panel of experts to propose an overhaul of the federal judiciary.
Roberts knows that if the Court were to intervene now in the state election-law cases — i.e., if the Court were to do its job, apply the law, and clarify before the election that ballot-counting rules duly enacted by state legislatures may not be altered by judges and bureaucracies — Democrats and their media allies would turn up the heat. They would falsely claim that Republican-appointed justices are putting their thumb on the scale for President Trump. The Court’s three lefties would chime in about the conservatives’ hard-heartedness in the face of a pandemic — as if the legislatures in the states had not gone to considerable lengths to help people vote while minimizing COVID risks.
Hardwired to fret more about the Court’s standing (even its standing with demagogues who will never be satisfied unless and until the Court is dominated by leftists), Roberts is more worried about the partisan noise than the proper resolution of election-law cases. Prominent among his worries, and the worries of some other justices, not least Justice Barrett, is the media-Democrat claims that Barrett’s appointment is somehow “illegitimate” (though they have no legal basis for that spurious carp), and that she must, at a minimum, recuse herself from any cases touching on the 2020 election. That would supposedly blunt the defamatory claptrap that she has a conflict of interest, having been put on the Court to assure Trump’s victory. . . . Or was it to throw out Obamacare? . . . Or reverse Roe v. Wade? It’s hard to keep track.
So Roberts is making a high-stakes bet that the election will not be close enough, neither nationally nor in the relevant states, that the election-law disputes will matter. If he just toughs it out for a few more days, he figures maybe the Court can dodge these bullets — avoid dealing with the election-law cases at all, and avoid the bad preelection publicity that would come with telling Democrat-dominated state courts and bureaucracies to stop fiddling with ballot-counting deadlines.
I believe the chief justice, a clever man to be sure, has coopted Kavanaugh in his machinations. Kavanaugh knows Roberts and the three liberals are dead wrong on the law. In just the last four weeks, he has issued two opinions (Andino v. Middleton and Democratic National Committee v. Wisconsin State Legislature) and joined in still another (Justice Gorsuch’s in the just-cited Wisconsin case), which outline the applicable constitutional principles: The Constitution vests in state legislatures the power to determine voting rules; courts are not given that power; nor may courts rationalize altering valid state election laws by claiming that complications caused by the coronavirus pandemic require it, because our system vests the responsibility for dealing with those complications in elected officials accountable to the people whose lives are affected; plus, the Supreme Court’s jurisprudence admonishes that election rules may not be changed when the election is imminent; and it would be impossible to hold elections without deadlines, so deadlines set by state law must be respected as long as they are reasonable.
Yet Kavanaugh has to know that by voting with Roberts, he is providing cover for Barrett. That is, by providing a fifth vote in favor of not intervening in Pennsylvania and North Carolina, Kavanaugh ensures that, rather than deciding a smoking-hot controversy, the new, Trump-appointed justice’s vote does not matter.
Now, because Barrett’s vote could not affect the outcome, she was able to sit the cases out and avoid deciding whether to recuse herself. In effect, she said, “Look, I’ve been on this job for less than two days, I’ve suddenly got a ton of new cases, I’m trying to set up my chambers, I need to get ready for my first conference with the other justices on Friday and my first oral arguments next week, and I just haven’t had time to master these election-law cases.” Who could argue with that, particularly if her vote was not necessary to resolve the cases?
So . . . if Roberts gets lucky, if Barrett gets lucky, if the Court gets lucky, the election will end Tuesday night in a clear-cut victory for one candidate or the other. Then, the justices can go about their other business. No one will care about Pennsylvania, North Carolina, Wisconsin, or other potentially disputed states. The Court will never have to decide an election issue. Barrett will never have to decide that there is no real reason she should be disqualified, nor face the very real possibility of being the fifth and deciding vote in a case that is perceived as deciding who wins the presidency. The election-season frenzy will pass, the Court-packing blather will pass, what passes for normalcy will return, and the Court can carry on, as ever.
But what if they don’t get lucky?
If the race is close, if the legerdemain in Pennsylvania and North Carolina end up mattering, then Roberts has assured that the Court will be called on to intervene post-election, in a make-or-break way. At that point, if the justices make what the media-Democrat complex deems to be the “wrong” decision — if Trump wins and the justices, correctly applying the law, rule that ballots disallowed under state statutory law may not be counted, even if they might otherwise have swung the election to Biden — then all hell will break loose. The justices will catalyze the Left’s radical demand to pack the Court. It would become a Democratic litmus test, to be implemented as soon as the party has the votes to do it. That would be the death of the Court as a legal institution, but even moderates who know that this is a terrible idea would be swept up in the maelstrom.
By the way, this is not a partisan thing. Things could get just as ugly if Biden wins under circumstances where the Court’s failure to do its job allowed Democrats to steal a close election by the kind of post-election ballot-box stuffing that the Pennsylvania court has invited — and that the Supreme Court could easily have put a stop to weeks ago. If Democrats sweep the election, they are not going to thank the Court. They are going to pack the Court, if they think they can get away with it. Biden may know it’s a bad idea, but he’ll be impotent to stop it, having joined more rabid Democrats in trying to delegitimize Barrett’s appointment . . . and Kavanaugh’s before that . . . and Gorsuch’s before that. The Left would know that the Court’s cravenness in failing to prevent 2020 election cheating had rendered Republicans too dispirited to fight a judicial overhaul.
Chief Justice Roberts is playing with fire. Maybe it will work out for him. I wouldn’t bet the ranch on it, but he just bet the Court on it.
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