Two years ago, Justice Brett Kavanaugh appeared before the Senate Judiciary Committee to defend himself against allegations of sexual misconduct. He lashed out at Democrats, left-wing activists, and those who sought “revenge on behalf of the Clintons,” whom he had investigated in the 1990s. Then he gave a stark warning. “This grotesque and coordinated character assassination will dissuade competent and good people of all political persuasions from serving our country,” Kavanaugh angrily told senators. “And as we all know, in the United States political system of the early 2000s, what goes around comes around.”
“What comes around goes around” echoed in my ears last night as I read the Supreme Court’s order in Democratic National Committee v. Wisconsin State Legislature, a dispute over the state’s absentee ballot deadline. A federal judge in Wisconsin, citing the coronavirus pandemic, ordered the state to count ballots that arrive by mail by November 9 so long as they are postmarked by Election Day on November 3. The Supreme Court blocked that ruling in a 5–3 vote on Tuesday night in an order on its “shadow docket,” where it decides emergency filings without full briefings or oral arguments. The ruling is a victory for Republican efforts to deny voters greater flexibility while they vote during a pandemic.
Among the justices to explain their reasoning was Kavanaugh, who articulated a Trumpian view of the election process. In his eyes, votes counted after the stroke of midnight on Election Day are inherently suspect; news organizations’ projections of the winner carry the same weight as the legal certification of the results; and Democrats’ efforts to ensure voters’ ballots are counted despite Post Office delays and the ongoing pandemic are destabilizing and delegitimizing to the electoral process. It was a coldly partisan vision of how American elections should be run, often unmoored from fact or reasoning. If this reasoning had sprung from the pen of the vast majority of Americans, it could be dismissed as ignorant; from Kavanaugh, it is unabashed partisanship.
In a moment of cinematic timing, the court’s order came down just moments before the Senate voted to confirm Amy Coney Barrett as the ninth justice. Barrett proceeded to the White House, where she took one of two oaths to become a Supreme Court justice in an outdoor ceremony led by Justice Clarence Thomas. Then, in a highly unusual move, she joined President Donald Trump on the White House balcony for what amounted to a campaign photo op before an audience of his closest political supporters. If two of the court’s leading conservatives wanted to signal that they were political actors instead of impartial jurists, they could not have done a better job.
Pres Trump escorts Justice Barrett up the South Portico steps to the balcony outside the Blue Room as invited guests applaud on the South Lawn beneath. pic.twitter.com/AxFfvJ0mA8
— Mark Knoller (@markknoller) October 27, 2020
In shadow docket cases, unlike normal cases, there is no written opinion summarizing the views of the majority. Their reasoning must instead be synthesized from any concurring opinions written by those justices, if they exist. Chief Justice John Roberts briefly argued that the court was justified to intervene when a federal court changed state election laws but not when a state supreme court did so, thus explaining his vote in the Pennsylvania election case earlier this month (when he voted with the three liberal justices to allow the state to count all ballots received by November 6). Justice Neil Gorsuch critiqued the lower court for imposing its own rules on Wisconsin because of the pandemic when state officials had already made significant accommodations. Kavanaugh largely agreed with Gorsuch’s reasoning but added to it by explaining why he thought state ballot deadlines were sacrosanct.
“For important reasons, most States, including Wisconsin, require absentee ballots to be received by election day, not just mailed by election day,” Kavanaugh wrote. “Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election. And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter. Moreover, particularly in a Presidential election, counting all the votes quickly can help the State promptly resolve any disputes, address any need for recounts, and begin the process of canvassing and certifying the election results in an expeditious manner.”
This is not how American elections work, and it’s profoundly embarrassing for a Supreme Court justice to claim otherwise. States do not “definitively announce” results on an election night; news organizations like the Associated Press issue projections that are often correct but not legally binding. In arguing for mail-in ballots to be tossed, Kavanaugh prioritized the perception of election results over the results themselves. “There are no results to ‘flip’ until all valid votes are counted,” Justice Elena Kagan wrote in her dissent from the court’s order. “And nothing could be more ‘suspicious’ or ‘improper’ than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is to disserve the electoral process.”
Kavanaugh’s argument here amounted to little more than lending a judicial imprimatur to Trump’s own efforts to delegitimize election results that might not reflect him as the winner. “It would be very very proper and very nice if a winner were declared on November 3, instead of counting ballots for two weeks, which is totally inappropriate and I don’t believe that that’s by our laws,” he told reporters outside the White House on Tuesday. “I don’t believe that. So we’ll see what happens.” In this exchange and past ones, Trump appeared to be referring to the “blue shift,” a phenomenon in which Democrats tend to gain votes as absentee and provisional ballots are counted after Election Day.
In the 2020 election, where mail-in ballots are being cast at historic levels and on an unusually partisan basis, it’s possible that Trump could get a lead on election night that slowly turns over the next few days into a Biden victory. That disparity could lead Trump to follow through on his constant threats to challenge the election results in some fashion, perhaps by targeting mail-in ballots and then asking the Supreme Court to intervene on his behalf. So transparent is Trump’s ploy to hold power that he and some Republican lawmakers all but stated they wanted Barrett on the court to help resolve any election-related cases.
The rest of Kavanaugh’s argument was riddled with errors and logical inconsistencies. At one point, he brushes aside Kagan’s note of how many people would be affected by the court’s move. “To take an analogy: How many people would file their taxes after April 15 if the filing deadline were changed to April 21?” he wrote, “Lots. That fact tells us nothing about how many people would file their taxes after April 15 if the deadline remained at April 15.” Faulty reasoning aside, the IRS thankfully only requires that tax returns be postmarked by April 15, not received by April 15. Other factual errors abound: Kavanaugh claimed that Vermont had made no changes to its election law because of the pandemic—a point rebutted by Vermont Senator Patrick Leahy, who noted that the state legislature authorized the mailing of absentee ballots to every registered voter in the state.
Most troubling of all, Kavanaugh endorsed an extreme view of the Supreme Court’s power over election laws articulated by William Rehnquist, Antonin Scalia, and Justice Clarence Thomas in Bush v. Gore. They argued that the high court has the authority to review state supreme courts, which generally have the final say on state legal disputes, when they interpret state election laws. As Slate’s Mark Joseph Stern noted last night, this theory not only clashes with major federalism precedents but sets up the Supreme Court to act as final arbiter on how states run their elections. Though the other six justices in Bush v. Gore disagreed with Rehnquist’s theory, Kavanaugh nonetheless cited it as precedent on Monday night.
None of this comes as any great shock, unfortunately. Kavanaugh spent most of his legal career as a Republican political operative: investigating the Clinton White House under Independent Counsel Ken Starr, working on George W. Bush’s legal team during the Florida recounts in 2000, and then serving in the White House Counsel’s Office and as staff secretary under Bush. From there, Bush nominated Kavanaugh to the D.C. Circuit Court of Appeals, the second most powerful court in the nation. Republicans knew what they were getting when they chose him to replace Anthony Kennedy in 2018, which is why they fought tooth and nail to get him on the high court.
Barrett, who also worked on Bush’s team in the 2000 election dispute, had multiple opportunities to demonstrate her independence and dispel concerns about partisan loyalty over the past month. During Gorsuch’s confirmation hearing in 2017, Trump’s first Supreme Court nominee openly criticized the president for his vitriolic attacks on federal judges who ruled against him and suggested he would be willing to do the same if the law required it. Barrett took a different path. Her appearance on the White House balcony is more subtle than Kavanaugh’s concurring opinion, but it will provoke the same response: joy among conservatives at what they’ve accomplished in the courts over the past four years—and resolve among liberals to undo all of it if they take power in November.
