Kavanaugh and Barrett’s Share of the Shame

With Election Day looming and early voting underway, Judge Amy Coney Barrett pledged at her confirmation hearing in October she would not act as a Republican “pawn” in any election dispute.

Democrats and the media, anticipating a close vote in the Electoral College, warned Barrett would rule in favor of the man who nominated her if the ultimate decision reached the Supreme Court as it did in 2000; Senator Richard Blumenthal (D-Conn.) demanded Barrett recuse herself “in any case involving Donald Trump’s election.”

Blumenthal, in essence, got his way. Democrats must be thrilled—laughing all the way to 2022 and 2024—at the de facto recusals by Justices Barrett and Brett Kavanaugh in every post-election lawsuit petitioned before the court, even those not filed by the Trump campaign.

Kavanaugh and Barrett, sold to the country as “originalists” who would counteract the bench’s Left-leaning jurists, instead joined their liberal colleagues and Chief Justice John Roberts to reject each case. In doing so, Barrett and Kavanaugh broke their promise to defend the Constitution and gave their imprimatur to lawless state elections—a clear and present danger to the future of the country.

Unilateral Action

The first sign of trouble came in December. Texas Attorney General Ken Paxton filed a lawsuit on December 7 asking the court to delay the December 14 deadline for states to certify electoral votes. It was a last-ditch longshot attempt to do the work the U.S. Department of Justice, Democratic state attorneys generals, and lower courts refused to do: adjudicate provable election fraud before it was too late.

Paxton’s filing, immediately joined by several Republican attorneys general and more than 100 Republican House members, detailed election illegalities in four states—Michigan, Pennsylvania, Wisconsin, and Georgia—and argued those states violated the Constitution by flouting election laws passed by their respective legislatures.

Using COVID-19 as an excuse, unauthorized officials made up their own voting rules to greatly expand mail-in voting, a massive—and decisive—gift to Joe Biden.

Among other policies unilaterally enacted, deadlines were extended, ballot curing and harvesting allowed, pre-canvassing began before legal start dates, and signature verification tossed, all in direct contravention of election law in those swing states. The volume of “no-excuse” and “indefinitely confined” absentee ballots surged. 

Republican observers were kept far from the ballot counting process under the guise of “social distancing” dogma. The percentage of rejected mail-in ballots was near zero, defying normal rejection rates. (The rejection rate for absentee votes in Georgia in 2016 was 6.4 percent; in 2020, it dropped to .35 percent.)

But despite the flagrant unlawfulness documented in the Texas, et al case, the Supreme Court concluded the Lone Star State “has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” Justices Samuel Alito and Clarence Thomas disagreed. “In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction,” Alito wrote December 11.

What, exactly, were Kavanaugh and Barrett thinking? As I asked after the court denied Texas’ standing, “what if Pennsylvania in the future allows noncitizens to vote legally in presidential elections? What if Michigan decides to give people of color two votes to compensate for past election ‘disenfranchisement?’”

Would Kavanaugh and Barrett, the alleged “originalists,” still turn a blind eye?

One has to assume, sadly, yes.

Fair-Weather Originalism

In another stunning broadside this week, Kavanaugh and Barrett again parted ways with the true originalists on the bench to side with Roberts as well as Justices Elena Kagan, Sonia Sotomayer, and Stephen Breyer to reject two solid lawsuits related to Pennsylvania’s illegitimate election. (Take a moment to remember the fight for Kavanaugh and now envision him uniting with the most anti-conservative members of the court on a matter this consequential.)

Pennsylvania’s election, as I explained in November, was so corrupt as to have been disqualifying. Despite an obvious “red wave” in the Keystone State, Joe Biden allegedly won by 80,000 votes, earning 2 million of the state’s 2.5 million absentee ballots and 20 electoral votes.

He had a lot of help. Kathleen Boockvar, appointed secretary of state by Democratic Governor Tom Wolfe in 2019, arbitrarily rewrote several of the state’s already-lax election rules to amass an unprecedented volume of mail-in ballots that would favor Biden. (Boockvar, named a defendant in several election lawsuits, coincidentally resigned this month amid a separate controversy at her office. Her dirty work was done.)

Numerous court challenges, including at the Supreme Court, were scuttled both before and after Election Day; Pennsylvania’s supermajority Democrat Supreme Court issued preposterous defenses of Boockvar’s actions. The highest court in the land was the last chance to redress the election’s many wrongs.

And thanks to the cowardice of Kavanaugh and Barrett—one can only assume since Kavanaugh changed his pre-election position on Pennsylvania, threats of promoting a “Big Lie” about election fraud got to him—the Supreme Court fell one vote shy of vetting two strong lawsuits filed separately by the Republican Party of Pennsylvania and the Republican president of the state senate.

In the February 22 dissenting opinion, Thomas, Alito, and Neil Gorsuch argued the lawsuits did fall within the court’s purview. “[T]he Federal Constitution, not state constitutions, gives state legislatures authority to regulate federal elections,” Thomas wrote. “An election system lacks clear rules when, as here, different officials dispute who has authority to set or change those rules. This kind of dispute brews confusion because voters may not know which rules to follow.”

Thomas noted mail-in ballot use in Pennsylvania surged from four percent of the total cast in 2018 to 38 percent in 2020, a trend likely to continue in the future. “We have the opportunity to [address election integrity] almost two years before the next federal election cycle. Our refusal to do so by hearing these cases is befuddling.”

“[T]he cases now before us are not moot,” Alito wrote with Gorsuch joining. While the justices insisted Pennsylvania’s extended mail-in ballot deadline did not change the outcome of its election, it’s hard for any party to say so with confidence given the state’s other rogue rules, which the court didn’t address.

What Is the Court Waiting For?

The court this week rejected unanimously several election lawsuits filed by other parties to contest elections in Pennsylvania, Georgia, and Arizona; the only remaining election lawsuit pending before the Supreme Court is Trump’s lawsuit against the Wisconsin Election Commission. The Badger State’s election, which Biden won by only 20,000 votes resulting in a gain of ten electoral votes, was as bad as Pennsylvania’s, I explained last November.

“One wonders what this Court waits for,” Thomas concluded in his dissent. “We failed to settle this dispute before the election, and thus provide clear rules. Now we again fail to provide clear rules for future elections. The decision to leave election law hidden beneath a shroud of doubt is baffling. By doing nothing, we invite further confusion and erosion of voter confidence. Our fellow citizens deserve better and expect more of us.”

We certainly deserve and expect more from Amy Coney Barrett and Brett Kavanaugh. We don’t know, as Thomas asked, what they’re waiting for—Trump’s exit from the political scene, perhaps? Or was their move more craven, an abdication of their sworn duty in a selfish attempt to fit in with the Trump-hating Beltway?

Here’s what we do know for certain: Their alliance with the liberal wing of the bench is not a betrayal of Republicans or the president responsible for their lofty, lifetime gigs—it’s a betrayal of the Constitution. Some blame for the chaos in future elections will fall firmly, and shamefully, on them.

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