Team Supreme Court may not get a shot off
at the 2020 election
But if I’m wrong, the nation is in for a spectacle of legalistic
casuistry, pettifoggery and intellectual dishonesty like something out of
Kafka’s “The Trial.”
By Gene
Lyons Nov 4, 2020, 5:43pm CST
Unless my Election Day expectations are badly mistaken, we’re
going to hear a lot less from the U.S. Supreme Court in coming weeks than many
anticipate, because the presidential election won’t be close enough to steal.
If I’m wrong, the nation is in for a spectacle of legalistic
casuistry, pettifoggery and intellectual dishonesty like something out of Kafka’s
“The Trial.”
My own favorite literary portrayal of the judiciary, however,
occurs in Jonathan Swift’s “Gulliver’s Travels,” in which our hero explains his
native country’s legal system to Master Houyhnhnm, a philosophical talking
horse who has never encountered a Yahoo capable of reason.
“I said, ‘There was a society of men among us, bred up from
their youth in the art of proving, by words multiplied for the purpose, that
white is black, and black is white, according as they are paid. To this society
all the rest of the people are slaves.’”
Of course, Swift lived in an Ireland ruled by English judges,
but the situation feels familiar. Citing a dispute over livestock, Gulliver
explains: “They never desire to know what claim or title my adversary has to my
cow; but whether the said cow were red or black; her horns long or short;
whether the field I graze her in be round or square; whether she was milked at
home or abroad; what diseases she is subject to, and the like; after which they
consult precedents, adjourn the cause from time to time, and in ten, twenty, or
thirty years, come to an issue.”
These days, of course, things can move more quickly when politically
convenient. So it is that Supreme Court Justice Brett Kavanaugh got the ball
rolling early with a recent opinion so filled with factual and legal
absurdities that it became necessary for him to issue a correction. It is not
recorded whether or not the great man’s well-known fondness for beer played a
role.
A constitutional “originalist” like his newly installed
colleague Amy Coney Barrett, Kavanaugh embraced what The Washington Post’s
Jennifer Rubin called the “Cinderella theory” of voting — i.e. that votes not
counted by midnight on Election Day turn into pumpkins.
This would be news to the authors of the Constitution, who lived
in a time when it could literally take weeks to travel from, say, Washington to
Boston, depending upon the winds and tides. That’s why the Electoral College
doesn’t meet until several weeks after the election, and the results aren’t
tabulated by Congress until the second week in January.
Nevertheless, Kavanaugh’s opinion claims that states
“definitively announce the results of the election on election night.” This is
brazen nonsense. Even the TV networks don’t necessarily do that (not that it’s
Wolf Blitzer’s or Lester Holt’s decision to make).
“To the contrary,” as Mark Joseph Stern writes in an astringent
takedown in Slate, “every state formally certifies results in the days or weeks
following an election,” and every state always has. None certify results on
election night, nor ever have. For most of American history, it’s been a
practical impossibility, and remains so today.
So why would a supposedly brilliant Supreme Court justice make
so elementary an error? Basically, because it’s not a mistake at all, but a
necessary prelude to Kavanaugh’s attempt to cast suspicion (and to instruct
Trump-appointed judges around the country) regarding mail-in and absentee
ballots.
“States,” the justice pronounces, “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.”
To which Justice Elena Kagan responded tartly in her dissent:
“There are no results to ‘flip’ until all valid votes are counted. And nothing
could be more ‘suspicio(us)’ or ‘improp(er)’ than refusing to tally votes once
the clock strikes 12 on election night.”
Never mind, also, that Boss Trump himself has always voted
absentee until 2020. Nor that many “suckers” and “losers” mailing ballots from
U.S. military deployments around the world would also be disenfranchised.
That’s the Trump plan to abscond with the presidency: Just don’t count upward
of one-third of the ballots, and he wins.
Kavanaugh is down with it all the way. It appears likely that
the rest of the GOP-appointed justices — with the possible exception of Chief
Justice John Roberts, who sometimes appears concerned about the court’s future
— would back his play. Assuming, as I say, that there’s any play to be made;
and that the justices believe that the spectacle of courts ordering millions of
legally cast votes discarded would serve even the short-term interests of the
Republican Party.
If so, they ought to ditch the sacerdotal black robes and wear
brightly colored red team uniforms on the bench. For that matter, I can just
see Kavanaugh and Barrett decked out in cheerleader costumes with a big T on
their chests, can’t you?
Send letters to letters@suntimes.com.
