Barrett’s inevitability will stabilize the Supreme Court

A unanimous Supreme Court decision about voting rights bodes well for Barrett's nomination and for post-election integrity and stability.

A unanimous Supreme Court decision about voting rights bodes well for Barrett’s nomination and for post-election integrity and stability.

The Supreme Court handed down an interesting ruling yesterday. The issue before it in Andino v. Middleton was whether the federal court could ignore the South Carolina legislature’s refusal to use the Wuhan virus as an excuse to do away with the state’s existing rule that residents voting by mail have to get a witness to sign their ballots.

This witness requirement has been in operation since 1953. Meanwhile, South Carolina is significantly easing up on its lockdown requirements (which were never as draconian as those in the big Democrat states). At a practical level, the change Democrats demanded is almost irrelevant. It’s purpose was purely political.

Last month, Democrats demanded that the district judge rule that, because of the Wuhan virus, the Republicans could not reject a change to the witness requirement. The judge, an Obama appointee, quickly approved the ad hoc change. The Fourth Circuit reversed that order.

The case then went to the Supreme Court. Keep in mind that this is an evenly divided Supreme Court. It has Thomas, Alito, Gorsuch, and Kavanaugh on the strict constructionist side; Sotomayor, Kagan, and Breyer on the left; and Roberts, who was nominated as a conservative but has given up any pretense of that, reliably left of center.

Any decision about South Carolina absentee voting could easily have been a split decision, either a stalemate of 4-4, or a 5-3 decision. That’s not what happened, though. Instead, the Court was unanimous.

The core ruling is that the district court’s order was improper and that the 1953 rule is reinstated. To the extent that people had already sent in absentee ballots during the period the district court had stayed that order, those ballots may still be counted. Justices Thomas, Alito, and Gorsuch wouldn’t have allowed even those ballots to be counted.

Justice Kavanaugh wrote a short opinion that is a shot across the bows of those leftist courts that are willy-nilly changing legislative voting rules in order to advance Democrat election goals. He stated, in relevant part that it is a state’s legislature, which is “politically accountable,” not a federal court, that should be making rulings about whether a voting method is appropriate in times of illness:

It follows that a State legislature’s decision either to keep or to make changes to election rules to address COVID–19 ordinarily “should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”

It’s  not just that the district court lacks the appropriate accountability to second-guess the legislature. As a matter of principle, as elections draw near, the district court must stay on the sidelines:

Second, for many years, this Court has repeatedly emphasized that federal courts ordinarily should not alter state election rules in the period close to an election.

Let me reiterate what Kavanaugh did: He put down a baseline, which is that decisions about how votes should be cast  belong to legislatures not judges. Judges across America would be well-advised to remember that.

The opinion is most fascinating to me, though, insofar as it was unanimous. This means that three hard-left justices and one weak-kneed lefty-centrist also agreed to put the kibosh on a leftist district court judge who was doing what she could to advance Democrat plans. In other words, the judges went for election stability by presenting a united front.

I believe what we’re seeing here is what I would call the Amy Coney Barrett effect. The leftist justices (plus Roberts) have accepted that Barrett’s appointment is a fait accompli. Her presence on the Court in three weeks has an important implication:

Think ahead to the days and weeks after the election. My bet is that in the first count, Trump will have won — and won decisively. After all, enthusiasm for him is sky-high among open supporters and he has a lot of covert supporters as well.

Where the Democrats will fight their post-election battle will be over mailed-in ballots that came in days or weeks after the election, many without even a postmark showing when, or even if, they were mailed. These fights will often revolve around leftist judges creatively interpreting long-standing legislation about mail-in votes.

There is no question, under those circumstances, that Barrett will side with her fellow strict constructionists (Thomas, Alito, Gorsuch, and Kavanaugh). These justices will reach a ruling consistent with Kavanaugh’s concurrence in the Andino case: Judges don’t get to mess around with election laws. End of story.

In ordinary years, the leftist judges, plus Roberts, could be expected to dissent from such majority rulings. It would go against their principles not to speak out. I think, though, that Andino is a signal that in this extraordinary year, they won’t.

Judges, even leftist judges, are inherently conservative. They’re an integral part of the system and they like it that way.

Moreover, the minority activist judges must recognize that, with Barrett’s inevitable ascension to the Court, the Supreme Court will, in future, be a strict constructionist court. We know that, in their hearts, the leftists will object to rulings hewing to legislatively established voting rules, when they really want to approve of judge-made or other ad hoc changes to increase Democrat-friendly voting.

However, what they also know is that, if they officially dissent, their dissents will not change those rulings. What the dissents will do — and the justices know this — is inflame the leftist base, increase distrust in the election outcome, and fundamentally destabilize the American system.

The Andino case may represent the leftist judges (plus Roberts) recognizing the abyss that opens up if they allow Democrats to change election rules at will. They know, too, that if they dissent from rulings on election integrity and stability, they will provide ammunition to those seeking to take down the American system. With Barrett on board for all practical purposes, I think (and hope) that the Supreme Court, leftists included, is planning to present a united front after the election, in order to prevent a full-blown, guns-blazing civil war in America.

Image: United States Supreme Court (cropped) by Jarek Tuszyński. CC-BY-SA-3.0 & GDFL.

[Note: I cleaned up the post since I originally wrote it. I put it up quickly, which was a mistake. The substance is unchanged.]

About Bookworm 1320 Articles
Bookworm came late to conservativism but embraced it with passion. She's been blogging since 2004 at Bookworm Room about anything that captures her fancy -- and that's usually politics. Her blog's motto is "Conservatives deal with facts and reach conclusions; liberals have conclusions and sell them as facts."