The
Supreme Court Wants to Determine Who Votes and Who Wins
As Amy Coney Barrett
was sworn in, the other justices made their intentions clear.
By DAHLIA LITHWICK and MARK
JOSEPH STERN
OCT 27, 20203:06 PM
Judge Amy Coney Barrett, now Justice Amy Coney Barrett,
wants you to know that she is very independent. She is so independent that
she referenced the word three separate times in
her speech following her swearing-in ceremony. The event, which was essentially
emceed by President Donald Trump, was staged at the White House Monday evening,
shortly after the Senate voted on her. In real time, the ceremony looked slapdash;
confused staffers scuttled back and forth in the shadows behind Trump, and
microphones barely picked up the audio at points. It
was only afterward that it became clear what the purpose of the event was: It
seems to have been primarily designed to provide footage for a campaign ad
featuring Barrett and Trump. After promising her independence, America’s new
Supreme Court justice let herself star in a commercial for the president just
eight days out from the Nov. 3 election.
There was so much that was grotesque and even ghoulish about
the process of confirming Trump’s nominee—hand-picked, as the president
crowed—to tilt the election in his favor. For weeks we have observed and
remarked on the horror of the dead hand of a dying Republican Party forcing through
a nominee to entrench its fading power even as the party struggles in the
polls. The confirmation celebration put that same desperation on full display.
There was the insistence on a White House ceremony, in the dark of night, that
was attended only by Republican Party operatives. There were no other Supreme
Court justices in attendance, with the exception of Justice Clarence Thomas,
who performed the ceremony, the equivalent of a shotgun wedding. Republican
senators sat in the spaced-out chairs on the lawn receiving congratulations for
their accomplishment of elevating Barrett, finally wearing masks in a
performative display of safety as they prepared to adjourn without passing
needed legislation addressing an illness that has ruined the lives and livelihoods
of millions of Americans. All of this ended with the president leading Justice
Barrett up the steps to the White House, where he stood woodenly smiling with
her for the photo-op on the balcony that would be speedily rendered into the
triumphal finale of the taxpayer-funded campaign commercial. If this was a
performance of judicial independence, one would worry about what beholden looks
like.
This would all have been jarring on its own, a strange and
tawdry shedding of the norms around the need for an independent federal
judiciary, were it not for the fact that just before it began, the Supreme
Court handed down an order that will force Wisconsin voters to either endanger
their lives by voting in person, or risk having their mail-in ballots tossed.
That order is propped up by demonstrably sloppy, paranoid lies and
a citation to Bush v. Gore—a case that
stands for nothing doctrinally, and everything as a matter of partisan
politics.
A
partisan court cannot determine that it is unbiased; that is the job of the electorate.
Barrett has bet the integrity and the esteem of the court
itself on her repeated claims that she is “independent” of the president simply
because she feels that she is independent. She seems to either misunderstand or
not care that judicial ethics rules don’t take into
account how judges feel about their own bias, but rather how
the public perceives the appearance of their objectivity. Certainly the
American public would not be mistaken in believing that Barrett now works for
the Republican Party, given the smarmy GOP tweets, the rank hypocrisy of Lindsey
Graham and Mitch McConnell, or the fact that today she is featured in a
commercial for a president who falsely claims that mail-in ballots are fraudulent,
just as his last Supreme Court nominee, Brett Kavanaugh, pens that very lie
into an opinion.
One enduring truism about the Supreme Court is that its sole
power lies in public perceptions of its legitimacy. A second enduring truism is
that public perceptions of its legitimacy are not unshakable. A partisan court
cannot determine that it is unbiased; that is the job of the electorate. While
you can stack the federal bench with partisans, it is the electorate that will
ultimately determine if the authority of courts will endure. We’ve been wondering
what would happen if a 6–3 court decided the 2020 election in a shoddy unsigned
opinion citing some gauzy logic plucked at random from Bush v. Gore,
which was never supposed to be used as precedent. The
events of last night made it clear that this is now a real option—a real
scenario that might conclude this election season. The only question is whether
the public will respond as it did in 2000 by complacently accepting the
decision as a done deal.
With Barrett installed on the bench at lightning speed,
there are now five ultraconservative justices prepared to interfere with
states’ efforts to count their citizens’ every vote. Clarence Thomas, Samuel
Alito, Neil Gorsuch, and Brett Kavanaugh have been previewing this plan for several
weeks now. Their outline is simple: throw out mail-in ballots that are sent by
Election Day but arrive shortly afterward; smack down state courts that try to
safeguard the right to vote; and insist that the Supreme Court is merely
upholding its duty to the Constitution. It will all be done with utmost
sincerity, in a blizzard of opinions that lean on the Bush v.
Gore playbook: Republican votes must be counted in full, while
Democratic ballots are inherently suspicious. States cannot be trusted to
enforce their own election laws with sufficient vigor. Someone else must step
in to protect Republicans from Democratic fraud. (That Democratic fraud would
be, by definition, the act of Democrats voting.) Election oversight inheres in
state legislatures only if those legislatures are controlled by the Republican
Party. And votes that threaten to “flip” elections are inherently
destabilizing. So, reluctantly, SCOTUS must step in, shielding the equal
dignity of every voter by tossing out enough Democratic ballots to hand Trump
the election.
Maybe
the governed won’t care that a week before the election, the Supreme Court is
busy pronouncing some votes more equal than others. But maybe they will.
Is Barrett sufficiently independent to thwart this plan?
Will she at least recuse from election cases over the next few weeks? We will
know soon enough. Federal law requires a justice to recuse
herself from a case in which her “impartiality might reasonably be questioned.”
Barrett just starred in a campaign ad for the sitting president. She was
chosen, by the president’s own admission, to hand him the
election. But she refused to say she’d recuse herself during her confirmation
hearings, a bad omen for the coming weeks and years and decades. And so, again,
the question is not really what Barrett will do (that’s not a mystery), but
whether the American people will accept her insistence that her mind is so open
that we should treat her deciding which votes get counted and which get tossed
as legitimate.
In her extraordinary dissent to Monday’s order, Justice Elena
Kagan raised a red flag: The Supreme Court has formally blessed overt
“disenfranchisement.” In voting rights cases, she reminded her colleagues,
“politicians’ incentives often conflict with voters’ interests—that is,
whenever suppressing votes benefits the lawmakers who make the rules.” And “the
Wisconsin legislature has not for a moment considered whether recent COVID
conditions demand changes to the State’s election rules.” In other words, the
state’s ultra-gerrymandered, GOP-dominated Legislature is
allowing COVID-19 to disenfranchise voters. But the conservative justices
didn’t care. They insisted that the proper remedy lies with the Legislature,
even though Wisconsin’s hasn’t met since April—and chiefly uses its power to attack the governor’s COVID-19 restrictions.
Kagan’s concern here isn’t just that the Supreme Court has
now signed off on Donald Trump’s baseless claim that some ballots are less
legitimate than others, or that ballots arriving after Election Day—which state
reading of state law accepts as perfectly lawful—are somehow inherently
suspect. Her concern is that a court whose legitimacy depends on the consent of
the governed has decided that some of the governed simply do not get to
consent. As she notes, rebutting Kavanaugh’s alarmist claims about the impropriety of
counting late-arriving ballots, “nothing could be more ‘suspicio[us]’ or
‘improp[er]’ than refusing to tally votes once the clock strikes 12 on election
night.”
A majority of the court is already participating in the same
mass popular disenfranchisement that has been ordered up by the president. This
basis for mass disenfranchisement is so obvious it has been labeled false by
Twitter, even as Barrett refused to answer questions about it. Maybe
the governed won’t care that a week before the election, the Supreme Court is
busy pronouncing some votes more equal than others. But maybe they will.
Despite the incessant braying from Mitch McConnell, Lindsey Graham, and Donald
Trump that the public doesn’t care that the court is poised to decide this
presidential election, it’s not yet clear that voters will take kindly to a
decisive vote cast by a justice installed on the bench a week before Election
Day for that express purpose. This use of the judicial branch to prop up a president failing in
the polls is surely what democracy doesn’t look like. You
don’t need a law degree to see that.
