The First Temptation of Amy Coney BarrettComments
The attempt by the Pennsylvania Republican Party to get an extended deadline for receiving ballots established by a state court interpretation of state law thrown out a few days before the election is the chance for Amy Coney Barrett to commit an impeachable offense before she’s been on the Court for a week:
The extension was challenged by the state Republican Party, which asked the U.S. Supreme Court to stay the September decision — with less than two weeks to go before the election — and thus force the state to throw out any ballots received after 5 p.m. on Nov. 3. Last Tuesday, the Supreme Court rejected the Republicans’ request, but only because it was deadlocked 4-4, with Chief Justice John Roberts joining the court’s three remaining Democratic nominees. (In Monday’s Wisconsin decision, Roberts finally explained that he sided with the state in Pennsylvania because the decision to extend the deadline was made by a state, not a federal court.)
There is, of course, no guarantee that Barrett will provide the fifth vote to throw the Pennsylvania election into chaos at the last minute — the fervent hopes of the state’s Republicans notwithstanding.
It is true that she does seem likely to share the views of Trump’s two other nominees, Justices Neil Gorsuch and Brett Kavanaugh, that the court should ignore its usual practice of not intervening in elections at the last minute, even if it means taking the radical step of overruling a state court’s interpretation of its state’s own law. But for her to provide the fifth vote to help Trump win an election he otherwise seems poised to lose (at least in terms of the popular vote) before she has been on the court for even a week would also be issuing a written invitation to Democrats to begin expanding the size of the court itself.
She could decide that, at least before Election Day, discretion is the better part of valor — but given her intellectual compatriots’ reasoning in the Wisconsin case, it seems foolhardy to rely on her discretion or valor.
When I filed the first draft of this story, I thought it was at least 50/50 that Barrett would side with Roberts if only for purely strategic reasons, but with Trump’s other nominees writing the opening briefs for Donald Trump’s election theft litigation team yesterday, I’m a lot less optimistic now. And obviously if she acts as Donald Trump’s personal lawyer in open defiance of what are supposedly the two controlling legal principles expanding the Court at the first opportunity is an absolute no-brainer.
The key here is the refusal of PA Republicans to agree to allow vote counting to start before 7 AM on Tuesday. The don’t even have any of their usual election integrity pretexts to fall back on here: this is just a straight up ratfucking operation. The plan is for PA to be the tipping point state, have Trump be ahead at some point at or after midnight on Nov. 3, get the courts to stop the count based on some ginned-up accusation of chicanery and then get a lot of ballots thrown out. We leaned yesterday that there are four justices ready to do what they can to make this happen; we’ll learn later this week if they have their fifth.
Meanwhile, this thread about the extraordinary sloppiness and bad faith of the American Thinker blog post Kavanaugh wrote yesterday is excellent, but this is particularly worth emphasizing:
Merrill II is a weird citation here, as the Supreme Court intervened to allow a state election official to unilaterally implement a voter restriction — a ban on curbside voting — that was ~no where~ in the state’s code. pic.twitter.com/QKXzXosf2R— Tierney Sneed (@Tierney_Megan) October 27, 2020
The idea that if the Constitution gives the power to do something in the first instance to a legislature it therefore preempts judicial review is an extremely stupid one nobody pretends to believe in any other context. But the Alabama curbside voting case, in which the Supreme Court allowed the executive branch to invent a vote suppression not present in the state code, makes clear that the Republican justices don’t believe it either. It’s just a pretext for them to throw out state court interpretations of state law that provide less vote suppression than they would prefer.
None of this is to say that it will work. Biden has a good chance of winning at least one knockout state (GA/FL/NC) on Election Day, and Democrats being in charge of the executive in PA will make it harder to steal the election there than it was in 2000. But if the Court even signals that it’s willing to try that’s a very big deal Dems can’t forget in January.