While we will probably never know the final total of infections, Wisconsin officials reported on Tuesday that at least 19 people who attended this month’s election in that state have contracted COVID-19. Of course, the election didn’t have to go forward as it did. The Wisconsin Supreme Court, which had a sitting justice up for reelection, overturned Gov. Tony Evers’ effort to postpone the election to a time when it might be safer. Subsequently, in a 5–4 decision, the conservative majority of the United States Supreme Court overturned a lower court’s decision to give voters six additional days to submit absentee ballots, a common-sense measure in light of closed, crowded, and unsafe polling places. Because of the Supreme Court’s reckless, reason-defying decision, tens of thousands of voters had to brave the polls in person, at grave risk to their health and well-being, or surrender their franchise. This is nothing new—the Roberts court has time and again abdicated its obligation in protecting our elections. The Wisconsin ruling raises concerns about what would happen in November’s presidential election if a second wave of the coronavirus pandemic is raging and the Supreme Court’s conservatives again have the chance to force citizens to choose between their health and the franchise. Worse still is the prospect of a nightmare scenario where pandemic-related voter suppression causes the Electoral College outcome to be in doubt in spite of a clear and decisive popular vote defeat of President Donald Trump, who has repeatedly said that he considers the prospect of a Democratic victory illegitimate. What would the court’s conservatives do if they were asked to decide the outcome of such an election? The implications of the Wisconsin ruling are that the court’s tolerance for election shenanigans is expansive and the court might be willing to place its imprimatur on polling marred by manipulation—or even outright theft.
Perhaps the better question is, what might the four progressive members of the court do to prevent such a theft? It would be an unprecedented example of constitutional hardball, but it turns out that there is something Justices Elena Kagan, Sonia Sotomayor, Stephen Breyer, and Ruth Bader Ginsburg could do to possibly prevent that scenario. The Supreme Court has a little-noticed—and rarely triggered—quorum requirement. By statute, without six justices participating to hear a case, the Supreme Court can’t decide the case. If four justices of the Supreme Court sit out a case, then the lower court’s decision is supposed to stand. So if a majority of the court were poised to allow decisive election manipulation this November, the four liberal justices could—and should—consider sitting out the case to deprive the court of its authority to hear it.
Now, it’s hard to know precisely what form this year’s voter suppression efforts will take and how extensive they will be: It could be purging voter names from registration rolls, strategically closing polling places, throwing out ballots, intimidating voters, rigging vote machinery, or miscounting totals—or, worse, it could be something shocking that catches us off guard. Perhaps a federal budget shortfall for the United States Postal Service will never be closed, leading to an inability to deliver mail-in ballots and forcing citizens to vote in unsafe conditions should the virus have returned. If such a case of election manipulation arises before the courts in a contested election this fall and the lower courts appropriately handle that case—erring on the side of granting Americans their voting rights—then the four liberal justices should consider sitting out, either through recusal or by refusing to hear the matter, to preserve that decision.
Would it be proper for a justice to take such evasive action? Make no mistake, “sitting out” is a hardball tactic and not to be used as a matter of course. It threatens significant fallout in terms of the legitimacy of the judiciary and our political institutions. As such, it is exceptional. But in cases of serious importance that implicate core constitutional and human rights—such as a contested election where one side is trying to overturn a clear outcome through blatant manipulation and possibly outright theft—the tactic provides a four-justice minority with one tool to stop and effectively reverse a decision from the Supreme Court that might effectuate grave harm. If confronted with election manipulation or theft, the minority would be justified in taking such extreme actions. Those actions would be supported by the law.
First, there’s statutory authority for sitting out, and there’s historical evidence that Congress introduced the quorum requirement for essentially this reason. Shortly after the Civil War, Congress was concerned that the Supreme Court intended to strike down the Reconstruction laws. In 1868, Congress passed a far-reaching bill requiring a two-thirds vote of the court to invalidate a federal law. Indeed, Rep. Robert Schenck of Ohio declared, “I hold it to be not only my right, but my duty as a Representative of the people, to clip the wings of that court.” President Andrew Johnson let the bill lapse, and in its wake, Congress passed the Judiciary Act of 1869. In addition to increasing the size of the court, the Judiciary Act of 1869 upped the quorum requirement from a simple majority of justices to six. Given its prior attempt at reining in the court and the quorum requirement’s ultimate inclusion despite the objection of some congressmen, Congress clearly intended the quorum requirement to help protect us from a Supreme Court run amok. A court that would validate election theft is a court run amok. Further, 28 U.S.C. § 2109, entitled Quorum of Supreme Court Justices Absent, explains what happens in the absence of a quorum:
If a majority of the qualified justices shall be of opinion that the case cannot be heard and determined at the next ensuing term, the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.
The upshot is that if four justices are unable to sit for any reason, then—as a matter of statute—the Supreme Court should not be able to render a decision and the lower court decision should stand. There is limited history around the quorum rule, but it would seem to confirm that this is an option. As Jack Metzler has written, for a lot of routine matters—like attorney admissions and publicly announcing the already-decided decisions—there have been days where a quorum was missing. But there is no example that I can find of the court substantively deciding a case where a quorum was missing. And it is very unlikely that any of the current justices objected in the more routine matters that have moved forward without a quorum. In the 1940s case North American Co. v. Securities and Exchange Commission, meanwhile, the court recognized it did not have a quorum and, expecting Congress to amend the quorum requirement, simply did not decide the matter until it did have one (because Chief Justice Harlan F. Stone eventually un-recused). In past cases requiring that all of the justices recuse, such as when someone sues all the justices of the Supreme Court or the whole judiciary, the court has abided quorum procedure as described by 28 U.S.C. § 2109.
Of course, recusing—or failing to show up—to avoid deciding a case would be unprecedented, and both the short-term and long-term consequences are hard to predict. Among other possibilities, the five-justice conservative majority of the Supreme Court could play their own constitutional hardball, attempting to forge forward despite lacking a quorum. Supreme Court justices have a nominal “duty to sit” in cases in which they are not recused for reasons of personal bias or knowledge of a case (a wide possible category). If a conservative majority were to decide that a group recusal by the liberal justices violated the “duty to sit,” they could say the recusals were unlawful and treat one or more of the justices as sitting for the case, even if they refuse to participate. Such a rejection of the recusal would contradict the plain meaning of 28 U.S.C. § 1, because if the sitting-out justices are in fact absent, there can be no quorum. If the majority could simply declare a quorum satisfied in such a circumstance when the minimum number was plainly not present, the statute is rendered meaningless. Still, the majority might just do as it pleases to reject the recusals. Not much could be done by the minority as a formal matter. Even in such a case that the use of the tactic is unheeded by the majority, the minority’s sitting out would ensure that the majority’s preferred decision does not carry the legitimate imprimatur of the Supreme Court and thus may degrade the legal force of a stolen election.
That isn’t to say that there’s no risk of fallout. Sitting out could cause chaos in the constitutional order, precipitate a crisis of legitimacy for the court, and degrade further any confidence left in our government. But those consequences are already guaranteed if an election is stolen while the court idly watches guard. There is no question that protecting our election is of paramount importance. The Constitution is the people’s charter and voting is the people’s voice. Safeguarding the right to vote is the way we preserve the democratic identity of our republic. The justices are our last lines of defense. They must be prepared to use every tool at their disposal to save our Constitution. As Wisconsin has showed us, elections are a matter of life and death.