Briefly Noted: The SCOTUS Confirms Its Abdication
As I'm sure everyone is aware, the SCOTUS declined to take up the Pennsylvania election cases, on a 6-3 vote. The lead dissent was written by Justice Thomas, with Alito and Gorsuch also dissenting. As Thomas put it (quote borrowed from Red State ):
The Constitution gives to each state legislature authority to determine the “Manner” of federal elections. Art. I, §4, cl. 1; Art. II, §1, cl. 2. Yet both before and after the 2020 election, nonlegislative officials in various States took it upon themselves to set the rules instead. As a result, we received an unusually high number of petitions and emergency applications contesting those changes. The petitions here present a clear example. The Pennsylvania Legislature established an unambiguous deadline for receiving mail-in ballots: 8 p.m. on election day. Dissatisfied, the Pennsylvania Supreme Court extended that deadline by three days.
The court also ordered officials to count ballots received by the new deadline even if there was no evidence—such as a postmark—that the ballots were mailed by election day. That decision to rewrite the rules seems to have affected too few ballots to change the outcome of any federal election. But that may not be the case in the future. These cases provide us with an ideal opportunity to address just what authority nonlegislative officials have to set election rules, and to do so well before the next election cycle. The refusal [by the SCOTUS] to do so is inexplicable…
…Not only did parties on both sides agree that the issue warranted certiorari, but there also was no question that petitioners faced irreparable harm. (“‘[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury’”). Petitioners further established a fair prospect of certiorari and reversal. For more than a century, this Court has recognized that the Constitution “operat[es] as a limitation upon the State in respect of any attempt to circumscribe the legislative power” to regulate federal elections . Because the Federal Constitution, not state constitutions, gives state legislatures authority to regulate federal elections, petitioners presented a strong argument that the Pennsylvania Supreme Court’s decision violated the [Federal] Constitution by overriding “the clearly expressed intent of the legislature.”
To my mind this decision simply confirms what was apparent from the refusal to the SCOTUS to take up the Texas election lawsuit that was joined by numerous other states. As I stated at the time, this marks the definitive abdication of the SCOTUS from playing its full constitutional role as a co-equal branch of the government. These cases--so clearly of fundamental importance for our constitutional order as a republic--were very obviously declined on political grounds, and likely out of fear. I fail to see now how the SCOTUS can ever regain its former prestige. One can argue that the abdication took place at some earlier point in history, but to me this decision, by confirming the previous abdication, makes it official and irrevocable. I see no point in discussing it further.
ADDENDUM:
This is not the conservative court that Americans were promised. Barrett & Kavanaugh already look too weak to be taken seriously. The Federalist Society is a joke. The entire facade of institutional conservatism is now crumbling before our eyes. https://t.co/yUm6J6lt4G
— Emerald Robinson ✝️ (@EmeraldRobinson) February 22, 2021