OR, HOW TO RECOGNIZE A TRUCKLOAD OF CONSTITUTIONAL HORSE MANURE WHEN YOU SMELL IT
I have not read the election opinions, and do not propose to do so. Mr. Barnes has done so, and provides a helpful summary. I shall summarize his summary, with some editorial commentary of my own.
There are three positions on the right of the Supreme Court to interfere in how the states run their elections.
The Three Liberal Musketeers
The three remaining liberals on the Court believe that the pandemic requires strong and aggressive measures to protect everyone’s right to vote and, at the same time, to protect their health. Evidently, this is a right they find somewhere in the penumbra of the Constitution. In any event, they believe that aggressive measures are just fine no matter who imposes them—the state legislature, the state courts, or the federal courts.
The Hour Horsemen of the Reactionary Apocalypse
Relying on a clause in the Constitution, and claiming to be strict originalists, these four worthies espouse the view that only the state legislatures control voting rules. This conclusion is based on the purportedly plain meaning of the constitutional text, and has nothing whatsoever to do with the fact that gerrymandered Republican legislatures are trying their best to prevent people from voting and help Orange Man steal the election.
Chief Justice Roberts’ Position
The Chief Justice has espoused a distinct view, namely, that the federal courts should not interfere with state election rules, whether imposed by state legislatures or by state courts.
Because of this distinct position, Republicans have won some of the election cases so far, and Democrats have won some of the cases. Each case has, in effect, been decided by application of the Roberts rule, which no other Supreme Court justice shares, except, possibly, Justice Barrett.
The Justice Amy Coney Barrett Position
No one knows what it will be. No one even knows whether she will vote on election cases to come in November.
Now, I know that some of you are cynical and will say you know exactly and precisely how she will vote. You will anticiopate that she will surely side with the Four Horsemen, sideline the Chief Justice, and hand the election to Trump if she is able to do so. And you may well be right. But you might be wrong, too. Because embracing the Justice Roberts position would do wonders for her image with the majority of our population. And for other related reasons as well.
Additional Editorial Commentary: Some Bedrock Principles
As the Four Horsemen like to remind us, Article I, Section 4 of the Constitution provides in part as follows: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof[.]”
The Four Horsemen want to read between the lines, construing the constitutional text to imply, “and therefore a state supreme court has no power to limit what a state legislature decides about election rules, even if the state supreme court thinks the legislature is acting contrary to the state constitution.”
But this strange interpretation is compelled neither by the words of the constitutional text, nor by the tenets of American jurisprudence, nor by common sense.
Moreover, it’s universally recognized that a state supreme court is the final arbiter of what state law, including the state constitution, means. Decisions on these matters are not within the purview of the federal courts, including the Supreme Court.
As a qualification: if a state supreme court decides that its state’s laws or constitution mean something that is forbidden by the United States Constitution, then of course the U.S. Constitution prevails. But that principle is not implicated by the current electoral cases. Even Justice Kavanaugh does not think the U.S. Constitution governs how many days the vote counters in Pennsylvania may take to count the votes. He just wants to declare—without any reasonable basis—that the Pennsylvania Supreme Court may not weigh in on the issue.
I smell something, and it is not perfume.