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The Trump Court and the 2020 Election


Leah Litman has a superb piece on the implications of RNC v. DNC for the elections in November, and it’s grim indeed:

The Court did little to explain its decision. It first maintained that the residents never requested the extension (though the dissent referenced a portion of the case transcript in which they did). The Court then cited a prior decision, Purcell v. Gonzalez, that reasoned that courts should be reticent to disturb election procedures close to the date of an election. But that principle is based on the idea that elections should not be riddled with last-minute chaos. It is hardly applicable to the circumstances that the country is facing now—namely, an election that is already riddled with the sweeping, last-minute chaos resulting from the coronavirus.

Who will benefit from the Court’s decision and who will be hurt—and possibly killed—by it is entirely predictable. The Court’s decision will depress voter turnout in the all-important judicial elections. The president recently said out loud what Republican voting strategists have long seemed to believe: Lower voter turnout benefits Republicans. With higher levels of voting, as Trump put it, “you’d never have a Republican elected in this country again.”


The Court’s decision is an ominous harbinger for what the Court might allow in November in the general election. Imagine, for example, that states do not allow absentee voting or voting by mail even though the coronavirus remains a serious threat to public health. Imagine also that the president, continuing to minimize the threat posed by the virus, tells his supporters that they should go out and vote anyway. Monday’s decision suggests that the Supreme Court wouldn’t care.

The Court’s indifference to Wisconsin voters is brazenly ironic. Before it issued the Wisconsin order, the Court indefinitely postponed all of the cases that were originally scheduled to be heard in March or April of this year, including a major argument over whether the House of Representatives can subpoena the president’s financial records. In the order explaining its decision to delay the hearings, the Court cited the historic and unprecedented nature of the coronavirus and the threat it poses. But while the Court is more than happy to make accommodations for the sake of the health of its own justices and members of the Supreme Court bar, it refuses to do the same for voters who are merely trying to participate in democracy.

Say what you will about “some lives matter, and some don’t,” it’s an ethos. And if the Court is willing to do this just to help their party be insulated from democratic elections in one state, imagine what they’ll be willing to do in presidential and Senate elections where their ability to maintain control of the Court itself is at stake.

Litman is also excellent on the absolutely infuriating civility trolling in the opinion everyone in the majority was (in the tradition of Bush v. Gore) for understandable reasons too chickenshit to even put their name on:

The Court’s Monday-night order offers a window into the Court’s thinking. The conservative majority went out of its way to say that the dissenting justices’ “rhetoric” was “quite wrong.” While a pandemic threatens our elections, in other words, the majority took time to criticize the tone that the dissent used. The Court’s conservatives disliked the dissenters’ pointing out (quite rightly) that the question in the case is “whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic,” an issue that is of “utmost importance” to, among other things, “the constitutional rights of Wisconsin’s citizens, the integrity of the State’s election process, and in this most extraordinary time, the health of the Nation.”

The Court’s insistence that the dissent adopt a more measured tone is an appalling exercise of the Court’s authority. The Court demanded respect and deference even though it does not deserve them: Nothing is respectable about giving cover to elected officials to suppress voting in the midst of a pandemic.

Ginsburg’s dissent was in fact remarkably measured under the circumstances, and the justices sending people to their death to make sure an unfair election happens today so Wisconsin can’t hold fair elections in the future can seriously fuck right off.

That last paragraph also makes a point that needs to be made more often: the legitimacy of the judiciary, as with any other institution, needs to be earned, not conferred like a royal title. Those who want respect, give respect. The Roberts Court gives none to the most fundamental democratic rights and deserves none in return.

Meanwhile, since we could all use some comic relief, here are some thoughts on the matter from Illya “The Senate Should Refuse to Confirm All of Hillary Clinton’s Judicial Nominees” Shapiro:

“It’s unfortunate that both the Wisconsin and U.S. Supreme Court rulings broke down the way they did, because it lends credence to the perception that law is increasingly no different than politics,” said Ilya Shapiro, a lawyer with the Cato Institute, the libertarian group. “But the decisions weren’t partisan.”

“Yes, what an unfortunate coincidence that all of these voting rights decisions that favor Republicans break strictly along partisan lines, leading to the impression that they are partisan, which they totally are not even they don’t even make a pretense of being constitutional law. Pull my finger.” This is the kind of “intellectual” environment in which Richard Epstein can look like a thought leader.

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