Wednesday's grant of emergency relief in the Virginia case epitomizes what's wrong with the "shadow docket"; the question now is whether we're in for a similarly unexplained ruling in Pennsylvania.
Thanks for the explanation. As to Kavanaugh, with respect, the ... he shouldn't be on the Court.
The Court's actions here directly affect democracy. If they do not have basic legitimacy, it is a problem. And, more and more, that baseline is not met. THAT is the ultimate lesson, and though it might not be possible depending on the results of the election, it is going to have to come from Congress.
The Court, partially as it is intended, isn't going on its own be shamed to act.
Why didn’t (couldn’t?) the dissenters issue their own opinion? That would likely have forced the majority to issue its own opinion, and even if they didn’t, the dissent could have explained the majority’s rationale (or lack of one)? Seems to me that the libs on the Court have allowed themselves to be pushed around too much.
I agree that the dissenters should have written. The justices pick their spots for reasons of their own. This involves much behind the scenes happenings that we are not aware of. Still, to me, this seems to be important enough to write a dissent.
Writing has not "forced the majority to issue its own opinion" in various instances. Jackson and Gorsuch, for instance, just this week dissented on the record with brief explanations without the majority responding.
To respond to another comment, I don't think the dissenters are "as much" responsible here since they have limited power. It is to be noted there are many elections related cases & the justices are taking everything into consideration.
I honestly don't think this court cares to hide its blatant partisanship at all. The masks are off and they are signaling that they are in the tank for Trump all the way. Let us pray they are not the final arbiter of who wins this election. They are Trump loyalists and feel that they don't have to explain what is abundantly clear.
This falls as much on the dissenters as the majority. Why didnt they tell us what they dissented from, and why? Bc they dont want to disturb their in house coffee clache? Its absurd
Are we looking at a potential *Bush v Gore* Supremes' intervention post-Election Day? Isn't the majority signaling that they will take an "activist" and partisan rôle in lawsuits flowing up its way challenging a Harris win?
Very informative piece, Steve. My question is if there is recourse from anyone removed from voting roles that are actual eligible voters? Is everyone removed notified and if removed based on, like in some states, "if the name sounds like a migrant", do those people have the ability to sure those states for suppressing their valid votes?
Most states provide at least some mechanism for folks who are wrongly removed from the rolls. It may be nothing more than getting back *on* the rolls, but the key there is just the timing--whether there's enough time before the election to correct any errors.
I kind of agree, but on the other hand, in practice, most of these emergency decisions come down to likelihood of success on the merits. (I think Kavanaugh pointed that out last year) So what would you have them do then? Would you really want the Court to begin commenting on the merits, without briefing or argument?
For the non-merits factors, I absolutely agree that reasoning (even 1-2 lines) is a benefit. And in this case in particular, I really wish they explained why they didn't invoke Purcell. (I assume they didn't, since I think they usually cite it when they do.)
I understand it's tricky to maintain objectivity when legally critiquing this Supreme Court's rulings, but I think the phrase "ideological lines," which the post uses twice, doesn't really fit. First, when we don't know what the basis for the ruling was, how can we map it on any "ideology" espoused at one time or another by any of the justices? Second, and as your book notes (and as subsequent Court rulings have largely borne out), the decisions of the justices in the majority here -- especially in election/voting-related cases -- do not track any "ideology" to which they previously may have nodded. E.g., starkly inconsistent application of the "Purcell principle." The only phrase that does seem to fit about the division is "partisan lines." For serious legal analysis, however, is that crossing the rubicon? Or just acknowledging that it's the Court that has crossed the rubicon?
SCOTUS justices KNOWINGLY violating our Constitution should be worth more than a yawn. Every SCOTUS justice KNOWS that our Constitution requires them to say what the law is governing any case or controversy. If they decide a case or controversy, our Constitution requires them to state the controlling legal authority.
“Article III of the Constitution establishe[d]” a “Judiciary” that must be “independent” of all except the law and which has the “duty to say what the law is” governing “particular cases and controversies;” judges “who apply [a] rule to particular cases, must of necessity expound and interpret that rule.” Bank Markazi v. Peterson, 578 U.S. 212, 225 (2016) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (Marshall, C.J.)). SCOTUS’ “responsibility” is “to say what the law is and afford the people the neutral forum for their disputes that they expect and deserve.” Kisor v. Wilkie, 588 U.S. 558, 631 (2019) (Roberts, C.J., concurring).
Our Constitution clearly did not give federal judges dictatorial powers, e.g., the power to merely dictate consequences, much less the power to violate our Constitution. Judges pretending that their mere fiat is the supreme law of the land is clearly and egregiously unconstitutional. The "supreme "Law of the Land" consists, first, of our "Constitution" and then federal "Laws" and "Treaties," and all "Judges" are "bound thereby." U.S. Const. Art. VI.
Joe, you're missing the point. The issue is not whether a result favors one party or faction over another. The process promotes tyranny. Preventing this particular abuse of judicial power is one of the primary reasons we have a Constitution. As Alexander Hamilton (quoting Montesquieu) in The Federalist No. 78. emphasized, “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” Although “liberty can have nothing to fear from the judiciary alone,” it “would have every thing to fear from its union with either of the other departments.” How can we know whether we have nothing to fear or everything to fear when SCOTUS justices hide their reasons for their rulings? Silence is evidence. SCOTUS justices' silence is evidence of a loss of our liberty and evidence of their tyranny.
Thanks for the explanation. As to Kavanaugh, with respect, the ... he shouldn't be on the Court.
The Court's actions here directly affect democracy. If they do not have basic legitimacy, it is a problem. And, more and more, that baseline is not met. THAT is the ultimate lesson, and though it might not be possible depending on the results of the election, it is going to have to come from Congress.
The Court, partially as it is intended, isn't going on its own be shamed to act.
Why didn’t (couldn’t?) the dissenters issue their own opinion? That would likely have forced the majority to issue its own opinion, and even if they didn’t, the dissent could have explained the majority’s rationale (or lack of one)? Seems to me that the libs on the Court have allowed themselves to be pushed around too much.
I agree that the dissenters should have written. The justices pick their spots for reasons of their own. This involves much behind the scenes happenings that we are not aware of. Still, to me, this seems to be important enough to write a dissent.
Writing has not "forced the majority to issue its own opinion" in various instances. Jackson and Gorsuch, for instance, just this week dissented on the record with brief explanations without the majority responding.
To respond to another comment, I don't think the dissenters are "as much" responsible here since they have limited power. It is to be noted there are many elections related cases & the justices are taking everything into consideration.
I honestly don't think this court cares to hide its blatant partisanship at all. The masks are off and they are signaling that they are in the tank for Trump all the way. Let us pray they are not the final arbiter of who wins this election. They are Trump loyalists and feel that they don't have to explain what is abundantly clear.
This falls as much on the dissenters as the majority. Why didnt they tell us what they dissented from, and why? Bc they dont want to disturb their in house coffee clache? Its absurd
Are we looking at a potential *Bush v Gore* Supremes' intervention post-Election Day? Isn't the majority signaling that they will take an "activist" and partisan rôle in lawsuits flowing up its way challenging a Harris win?
Very informative piece, Steve. My question is if there is recourse from anyone removed from voting roles that are actual eligible voters? Is everyone removed notified and if removed based on, like in some states, "if the name sounds like a migrant", do those people have the ability to sure those states for suppressing their valid votes?
Most states provide at least some mechanism for folks who are wrongly removed from the rolls. It may be nothing more than getting back *on* the rolls, but the key there is just the timing--whether there's enough time before the election to correct any errors.
I kind of agree, but on the other hand, in practice, most of these emergency decisions come down to likelihood of success on the merits. (I think Kavanaugh pointed that out last year) So what would you have them do then? Would you really want the Court to begin commenting on the merits, without briefing or argument?
For the non-merits factors, I absolutely agree that reasoning (even 1-2 lines) is a benefit. And in this case in particular, I really wish they explained why they didn't invoke Purcell. (I assume they didn't, since I think they usually cite it when they do.)
I understand it's tricky to maintain objectivity when legally critiquing this Supreme Court's rulings, but I think the phrase "ideological lines," which the post uses twice, doesn't really fit. First, when we don't know what the basis for the ruling was, how can we map it on any "ideology" espoused at one time or another by any of the justices? Second, and as your book notes (and as subsequent Court rulings have largely borne out), the decisions of the justices in the majority here -- especially in election/voting-related cases -- do not track any "ideology" to which they previously may have nodded. E.g., starkly inconsistent application of the "Purcell principle." The only phrase that does seem to fit about the division is "partisan lines." For serious legal analysis, however, is that crossing the rubicon? Or just acknowledging that it's the Court that has crossed the rubicon?
Yawn, liberal law professor crying about conservative Supreme Court decision, only on days ending with a “y”.
What a devastating, substantive response to my critiques.
If nothing else, I appreciate your proving the point about how providing explanations are critical to persuading those with whom you might disagree.
Sadly, this type of uneducated, childish "arguments" from unintelligent members of the cult have become more and more pervasive on Substack.
SCOTUS justices KNOWINGLY violating our Constitution should be worth more than a yawn. Every SCOTUS justice KNOWS that our Constitution requires them to say what the law is governing any case or controversy. If they decide a case or controversy, our Constitution requires them to state the controlling legal authority.
“Article III of the Constitution establishe[d]” a “Judiciary” that must be “independent” of all except the law and which has the “duty to say what the law is” governing “particular cases and controversies;” judges “who apply [a] rule to particular cases, must of necessity expound and interpret that rule.” Bank Markazi v. Peterson, 578 U.S. 212, 225 (2016) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (Marshall, C.J.)). SCOTUS’ “responsibility” is “to say what the law is and afford the people the neutral forum for their disputes that they expect and deserve.” Kisor v. Wilkie, 588 U.S. 558, 631 (2019) (Roberts, C.J., concurring).
Our Constitution clearly did not give federal judges dictatorial powers, e.g., the power to merely dictate consequences, much less the power to violate our Constitution. Judges pretending that their mere fiat is the supreme law of the land is clearly and egregiously unconstitutional. The "supreme "Law of the Land" consists, first, of our "Constitution" and then federal "Laws" and "Treaties," and all "Judges" are "bound thereby." U.S. Const. Art. VI.
Joe, you're missing the point. The issue is not whether a result favors one party or faction over another. The process promotes tyranny. Preventing this particular abuse of judicial power is one of the primary reasons we have a Constitution. As Alexander Hamilton (quoting Montesquieu) in The Federalist No. 78. emphasized, “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” Although “liberty can have nothing to fear from the judiciary alone,” it “would have every thing to fear from its union with either of the other departments.” How can we know whether we have nothing to fear or everything to fear when SCOTUS justices hide their reasons for their rulings? Silence is evidence. SCOTUS justices' silence is evidence of a loss of our liberty and evidence of their tyranny.