Supreme apparatchiks

Melina Mara/Getty

With the 2020 election just days away, the American political system is teeming with anxious speculation over the formal outcome of the balloting. It’s all too plausible that an official winner may not be declared once the polls are closed—and should that happen, the nation could be plunged into a prolonged crisis like the one at the end of the deadlocked 2000 cycle, which produced the infamous Bush v. Gore ruling from the Rehnquist Supreme Court, essentially handing the presidency to George W. Bush.

This time out, though, a stalemated election would fall to a high court boasting three right-wing appointees of the incumbent president—two of whom (together with Chief Justice John Roberts) were in the GOP political trenches in Florida seeking to turn the 2000 recount there in Bush’s favor. This is genuine cause for alarm, as TNR staff writer Matt Ford argues in his review of the court’s decision striking down a Wisconsin court’s ruling to extend the ballot count in that swing state, which is presently reeling from a debilitating spike in Covid-19 cases.

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The court handed down the Wisconsin decision as a “shadow docket” ruling, meaning that it didn’t require a full battery of opinions from the presiding justices—just “concurrent” opinions summing up the consensus thinking on the court. In this case, Kavanaugh’s concurrent opinion offered both a troubling glimpse of the flawed logic behind this ruling and an alarming preview of how the new conservative court will handle election and voting rights law going forward.

Kavanaugh’s opinion was a fusillade of full-blown Trumpism masquerading as legal reasoning. Kavanaugh sided with fellow justice Neil Gorsuch’s view that the Wisconsin court approving the extension in ballot-counting had improperly overridden state legislative measures to accommodate Covid-delayed balloting—but then went on to give a wildly inaccurate, evidence-free argument on the need to deliver completed voting tallies as close as possible to midnight on election night. In conducting presidential vote tallies, Kavanaugh insisted, states need to ensure ballots are received on Election Day and are not simply postmarked by that date, per the stricken Wisconsin ruling. Expedited Election Day tallies also spare states “chaos and suspicions of impropriety,” while streamlining the process of canvassing and validating official vote totals, Kavanaugh argued. All of these claims were adduced from thin air, Ford points out:

This is not how American elections work, and it’s profoundly embarrassing for a Supreme Court justice to claim otherwise. States do not “definitively announce” results on an election night; news organizations like the Associated Press issue projections that are often correct but not legally binding. In arguing for mail-in ballots to be tossed, Kavanaugh prioritized the perception of election results over the results themselves. “There are no results to ‘flip’ until all valid votes are counted,” Justice Elena Kagan wrote in her dissent from the court’s order. “And nothing could be more ‘suspicious’ or ‘improper’ than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is to disserve the electoral process.”

Things only got worse as Kavanaugh tried to steer his tirade toward the level of specifics. He erroneously contended that the IRS does not process tax returns postmarked on April 15; he mistakenly asserted that Vermont has not prolonged its ballot tabulations in the wake of the Covid-19 pandemic (the state has, in fact, and in a highly unusual move, state officials successfully petitioned Kavanaugh to correct this flagrant error).

But the most destructive effect of Kavanaugh’s opinion was its reliance on the 2000 Bush v. Gore ruling as precedent—in contravention of the majority’s warning in that decision itself. And with the high court’s new 6–3 conservative majority, there’s every reason to think that the bad precedent set in Bush v. Gore—permitting the U.S. Supreme Court to override state high court decisions in election litigation, contrary to long-settled legal tradition—can become another Trump-sanctioned derogation of core civic protections of basic constitutional rights. Indeed, as if to drive this point home, the Kavanaugh opinion was released just hours before new justice Amy Coney Barrett’s grotesque photo op with Trump on the balcony of the White House. That spectacle, as much as the bankrupt reasoning of Kavanugh’s opinion, was a grim portent of things to come, Ford notes. Barrett’s “appearance on the White House balcony is more subtle than Kavanaugh’s concurring opinion, but it will provoke the same response: joy among conservatives at what they’ve accomplished in the courts over the past four years—and resolve among liberals to undo all of it if they take power in November.” That’s all provided, of course, that these same justices don’t manage to wrest the election out of the voters’ hands by following the playbook that Brett Kavanaugh has spelled out on Trump’s behalf.

—Chris Lehmann, editor