Jurisprudence

The Supreme Court Wants to Determine Who Votes and Who Wins

As Amy Coney Barrett was sworn in, the other justices made their intentions clear.

Trump and Barrett stand on a balcony overlooking the South Lawn, with American flags all around them
President Donald Trump and newly sworn-in Supreme Court Justice Amy Coney Barrett at the White House Monday night. Alex Wong/Getty Images

Judge Amy Coney Barrett, now Justice Amy Coney Barrett, wants you to know that she is very independent. She is so independent that she referenced the word three separate times in her speech following her swearing-in ceremony. The event, which was essentially emceed by President Donald Trump, was staged at the White House Monday evening, shortly after the Senate voted on her. In real time, the ceremony looked slapdash; confused staffers scuttled back and forth in the shadows behind Trump, and microphones barely picked up the audio at points. It was only afterward that it became clear what the purpose of the event was: It seems to have been primarily designed to provide footage for a campaign ad featuring Barrett and Trump. After promising her independence, America’s new Supreme Court justice let herself star in a commercial for the president just eight days out from the Nov. 3 election.

There was so much that was grotesque and even ghoulish about the process of confirming Trump’s nominee—hand-picked, as the president crowed—to tilt the election in his favor. For weeks we have observed and remarked on the horror of the dead hand of a dying Republican Party forcing through a nominee to entrench its fading power even as the party struggles in the polls. The confirmation celebration put that same desperation on full display. There was the insistence on a White House ceremony, in the dark of night, that was attended only by Republican Party operatives. There were no other Supreme Court justices in attendance, with the exception of Justice Clarence Thomas, who performed the ceremony, the equivalent of a shotgun wedding. Republican senators sat in the spaced-out chairs on the lawn receiving congratulations for their accomplishment of elevating Barrett, finally wearing masks in a performative display of safety as they prepared to adjourn without passing needed legislation addressing an illness that has ruined the lives and livelihoods of millions of Americans. All of this ended with the president leading Justice Barrett up the steps to the White House, where he stood woodenly smiling with her for the photo-op on the balcony that would be speedily rendered into the triumphal finale of the taxpayer-funded campaign commercial. If this was a performance of judicial independence, one would worry about what beholden looks like.

This would all have been jarring on its own, a strange and tawdry shedding of the norms around the need for an independent federal judiciary, were it not for the fact that just before it began, the Supreme Court handed down an order that will force Wisconsin voters to either endanger their lives by voting in person, or risk having their mail-in ballots tossed. That order is propped up by demonstrably sloppy, paranoid lies and a citation to Bush v. Gore—a case that stands for nothing doctrinally, and everything as a matter of partisan politics.

Barrett has bet the integrity and the esteem of the court itself on her repeated claims that she is “independent” of the president simply because she feels that she is independent. She seems to either misunderstand or not care that judicial ethics rules don’t take into account how judges feel about their own bias, but rather how the public perceives the appearance of their objectivity. Certainly the American public would not be mistaken in believing that Barrett now works for the Republican Party, given the smarmy GOP tweets, the rank hypocrisy of Lindsey Graham and Mitch McConnell, or the fact that today she is featured in a commercial for a president who falsely claims that mail-in ballots are fraudulent, just as his last Supreme Court nominee, Brett Kavanaugh, pens that very lie into an opinion.

One enduring truism about the Supreme Court is that its sole power lies in public perceptions of its legitimacy. A second enduring truism is that public perceptions of its legitimacy are not unshakable. A partisan court cannot determine that it is unbiased; that is the job of the electorate. While you can stack the federal bench with partisans, it is the electorate that will ultimately determine if the authority of courts will endure. We’ve been wondering what would happen if a 6–3 court decided the 2020 election in a shoddy unsigned opinion citing some gauzy logic plucked at random from Bush v. Gore, which was never supposed to be used as precedent. The events of last night made it clear that this is now a real option—a real scenario that might conclude this election season. The only question is whether the public will respond as it did in 2000 by complacently accepting the decision as a done deal.

With Barrett installed on the bench at lightning speed, there are now five ultraconservative justices prepared to interfere with states’ efforts to count their citizens’ every vote. Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh have been previewing this plan for several weeks now. Their outline is simple: throw out mail-in ballots that are sent by Election Day but arrive shortly afterward; smack down state courts that try to safeguard the right to vote; and insist that the Supreme Court is merely upholding its duty to the Constitution. It will all be done with utmost sincerity, in a blizzard of opinions that lean on the Bush v. Gore playbook: Republican votes must be counted in full, while Democratic ballots are inherently suspicious. States cannot be trusted to enforce their own election laws with sufficient vigor. Someone else must step in to protect Republicans from Democratic fraud. (That Democratic fraud would be, by definition, the act of Democrats voting.) Election oversight inheres in state legislatures only if those legislatures are controlled by the Republican Party. And votes that threaten to “flip” elections are inherently destabilizing. So, reluctantly, SCOTUS must step in, shielding the equal dignity of every voter by tossing out enough Democratic ballots to hand Trump the election.

Is Barrett sufficiently independent to thwart this plan? Will she at least recuse from election cases over the next few weeks? We will know soon enough. Federal law requires a justice to recuse herself from a case in which her “impartiality might reasonably be questioned.” Barrett just starred in a campaign ad for the sitting president. She was chosen, by the president’s own admission, to hand him the election. But she refused to say she’d recuse herself during her confirmation hearings, a bad omen for the coming weeks and years and decades. And so, again, the question is not really what Barrett will do (that’s not a mystery), but whether the American people will accept her insistence that her mind is so open that we should treat her deciding which votes get counted and which get tossed as legitimate.

In her extraordinary dissent to Monday’s order, Justice Elena Kagan raised a red flag: The Supreme Court has formally blessed overt “disenfranchisement.” In voting rights cases, she reminded her colleagues, “politicians’ incentives often conflict with voters’ interests—that is, whenever suppressing votes benefits the lawmakers who make the rules.” And “the Wisconsin legislature has not for a moment considered whether recent COVID conditions demand changes to the State’s election rules.” In other words, the state’s ultra-gerrymandered, GOP-dominated Legislature is allowing COVID-19 to disenfranchise voters. But the conservative justices didn’t care. They insisted that the proper remedy lies with the Legislature, even though Wisconsin’s hasn’t met since April—and chiefly uses its power to attack the governor’s COVID-19 restrictions.

Kagan’s concern here isn’t just that the Supreme Court has now signed off on Donald Trump’s baseless claim that some ballots are less legitimate than others, or that ballots arriving after Election Day—which state reading of state law accepts as perfectly lawful—are somehow inherently suspect. Her concern is that a court whose legitimacy depends on the consent of the governed has decided that some of the governed simply do not get to consent. As she notes, rebutting Kavanaugh’s alarmist claims about the impropriety of counting late-arriving ballots, “nothing could be more ‘suspicio[us]’ or ‘improp[er]’ than refusing to tally votes once the clock strikes 12 on election night.”

A majority of the court is already participating in the same mass popular disenfranchisement that has been ordered up by the president. This basis for mass disenfranchisement is so obvious it has been labeled false by Twitter, even as Barrett refused to answer questions about it. Maybe the governed won’t care that a week before the election, the Supreme Court is busy pronouncing some votes more equal than others. But maybe they will. Despite the incessant braying from Mitch McConnell, Lindsey Graham, and Donald Trump that the public doesn’t care that the court is poised to decide this presidential election, it’s not yet clear that voters will take kindly to a decisive vote cast by a justice installed on the bench a week before Election Day for that express purpose. This use of the judicial branch to prop up a president failing in the polls is surely what democracy doesn’t look like. You don’t need a law degree to see that.