Editor’s Note: In light of the COVID-19 pandemic, the Supreme Court remains closed to the public. The building is open for official business only. March and April oral arguments have been postponed, and filing deadlines for petitions have been extended. The Justices are conducting their private conferences remotely. Orders and opinions continue to be issued as scheduled, but the Justices will not take the bench.
This week, the Justices released opinions in two argued cases. One was a win for older federal employees who allege age discrimination in the workplace. The other was a narrow win for police officers in a Fourth Amendment case. But what really made headlines this week was the Court’s wading into the furor surrounding the Wisconsin state primary election. The five conservative Justices voted to overturn a lower court judge’s order to extend the deadline for mailing absentee ballots. This decision may raise some eyebrows—or perhaps even the stomach contents—of some readers. But I would advise you to read before delivering judgment; don’t be so quick to blame the Court.
Opinions Relating to Orders: 3
Cases Argued: 0
Cert Grants: 0
Cases Decided: 23
Cases Remaining: 48
Weeks Left in Term: 11
Monday morning’s orders list garnered virtually zero headlines. The Court didn’t add any new cases. Three Justices did write opinions relating to the orders list, however. First, the Court did not take up Archdiocese of Washington v. Washington Metropolitan Area Transit Authority (WMATA), which dealt with the WMATA’s prohibition of displaying religious advertisements on D.C. buses. Justice Kavanaugh, who heard oral argument when the case was before the D.C. Circuit Court of Appeals, recused himself from any consideration at the Supreme Court. Consequently, had the Court granted the case, only eight Justices would have been eligible to hear and decide it.
This was the principal reason why Justice Gorsuch wrote an opinion respecting the denial of cert and not dissenting from it. “[I]t makes a poor candidate for review,” he writes, “[b]ecause the full Court is unable to hear the case.” But had it been otherwise, he (and Thomas) would have voted to hear the case.
Yet Gorsuch doesn’t stop there: had all nine Justices been eligible, he says this case would warrant “our intervention and a reversal” (emphasis added). The D.C. Circuit ruled that WMATA’s ban on religious advertisements does not violate the Establishment Clause of the First Amendment. So, Gorsuch evidently thinks the D.C. Circuit got it wrong. The ban is garden-variety “viewpoint discrimination,” he says, and thus a plain violation of the Establishment Clause.
Next, Justice Sotomayor penned an opinion respecting the Court’s denial of Halprin v. Davis, a capital case from Texas where the defendant has alleged that the sentencing judge was biased against him. Randy Halprin, the defendant, filed petitions in both federal and state courts for relief from his death sentence after evidence surfaced that the judge who sentenced him may have harbored racial or religious bias. The Supreme Court turned down Halprin’s federal relief petition, but Sotomayor writes to explain why. First, Halprin’s state relief petition is already working its way through the Texas courts. The Texas Court of Criminal Appeals recently put Halprin’s death sentence on hold and instructed the trial court to look at his bias claim. So if the Texas courts end up agreeing that judicial bias was present, there would be no need for the Supreme Court to hear Halprin’s federal relief petition. Second, if the Texas courts don’t agree with Halprin, Sotomayor points out that he isn’t precluded from later seeking relief in the Supreme Court. The Court’s denial of this petition is not the end-all-be-all for Halprin. He could still seek direct or habeas corpus relief in the Supreme Court in the event that he loses in the Texas state courts.
Finally, Justice Thomas was the lone dissenter when the Court declined to take up VF Jeanswear LP v. Equal Employment Opportunity Comm’n (EEOC). The case dealt with the scope of the EEOC’s power to investigate charges of employer wrongdoing. Here, the EEOC continued to enforce subpoenas against VF Jeanswear LP even after granting the complainant the right to sue the company and the complainant, in turn, initiated a private lawsuit. Two federal appeals courts (including the Ninth Circuit in this case) have held that the scope of the EEOC’s investigative power permits actions like this, but one appeals court has held oppositely. Despite the “shallow[ness]” of this circuit split, Justice Thomas thinks it warrants the Court’s review—as does the fact that this case entails the EEOC’s “core investigative power.” Alas, he seemed to be the only Justice on the bench to think so.
Later Monday morning, the Court decided two cases: Babb v. Wilkie (a statutory interpretation case) and Kansas v. Glover (a Fourth Amendment case).
Babb v. Wilkie
If you recall from last week, the Court’s decision in Comcast Corp. v. Nat’l Assn. of African American-Owned Media dealt with whether a federal anti-discrimination statute required “but-for” causation. Well, get ready for the same discussion again. Only this time the Court decided that another anti-discrimination statute doesn’t always require but-for causation.
In 1967 Congress passed the Age Discrimination in Employment Act (ADEA). As relevant here, the ADEA provides that when a federal-sector employer makes a personnel decision affecting an employee who is at least 40 years old, that decision must be made “free from any discrimination based on age” (29 U.S.C. §633a(a)). So suppose (as here) that a pharmacist at the U.S Department for Veterans Affairs sues the VA Secretary for age discrimination under the ADEA. Based on the language above, must the pharmacist prove that the Secretary would have made the same personnel decision but for the pharmacist’s age? (In other words, that her age was the reason for the Secretary’s decision?) Or must she prove only that her age was one of the reasons for the Secretary’s decision?
Justice Samuel Alito, writing for an 8:1 majority, gives a nuanced answer. Generally speaking, a plaintiff does not have to prove but-for causation to establish a baseline violation of the ADEA. Once a violation is established, however, but-for causation may be required to trigger certain remedies for the employee. Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh agree with Alito’s decision.
Alito properly begins with the text of the ADEA itself: “All personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age.” What really seals it for Alito is the phrase “free from any discrimination.” “Free from” means “untainted” or “clear of something which is regarded as objectionable,” he writes, quoting dictionary definitions of the phrase from Webster’s and the Oxford English Dictionary. So a personnel decision must be “untainted” by discrimination based on the employee’s age—that is, made without any color of age discrimination. Indeed, the pronoun “any” reinforces this conclusion. Thus, the ADEA not only prohibits a personnel decision from hinging on an employee’s age; it also bars a personnel decision from taking into account an employee’s age at all.
Funny enough, the federal government offers no defense to this point. The government’s main argument has two premises, and both of them are correct: (1) The phrase “discrimination based on age” requires but-for causation, and (2) “discrimination” means “differential treatment.” But the government then draws the following conclusion: Age must be the but-for cause of the ultimate personnel decision. This conclusion simply “does not follow” from the premises, Alito counters. What follows instead is that age must be the but-for cause of the differential treatment; age doesn’t have to be the but-for cause of the end personnel decision. The government’s fall-back argument—that this conclusion is inconsistent with prior precedents—is similarly unavailing.
Thus, Alito holds that to establish a violation under the ADEA, a federal employee does not need to demonstrate but-for causation. But there’s a caveat: but-for causation is “important,” Alito says, to determine an appropriate remedy after a violation has occurred. He notes it is “bedrock” tort law that “requested relief” must “redress the alleged injury” (Steel Co. v. Citizens for Better Environment (1998)). Thus, ADEA “plaintiffs who demonstrate only that they were subjected to unequal consideration cannot obtain reinstatement, backpay, compensatory damages, or other forms of relief related to the end result of an employment decision,” Alito maintains. But-for causation is required for these kinds of remedies.
Justice Sotomayor (joined by Justice Ginsburg) writes a short concurrence. She fully agrees that the ADEA does not require but-for causation to prove that a violation occurred. She simply wants to point out a couple things. First, the ADEA may extend to cases where age discrimination occurs in the process of making a personnel decision, rather than in the decision itself. Consequently, Sotomayor says damages may then be an appropriate remedy even where discrimination occurred in the process.
Eight Justices found themselves on one side of the field. Justice Thomas, however, plants his flag on the other side. He first looks to the Court’s “default” rule for determining burdens of proof under tort law. As the Court put it in University of Tex. Southwestern Medical Center v. Nassar (2013), “the plaintiff [must] show that the harm would not have occurred in the absence of—that is, but for—the defendant’s conduct” (emphasis added). When can the Court deviate from this rule? Thomas says it’s when the text of a statute “unambiguously” says otherwise. Turning to the possible interpretations of the ADEA, Thomas isn’t convinced that it clearly spells out something other than but-for causation. He says the government’s argument is “susceptible.” While he doesn’t actually endorse it, the fact that it’s plausible is sufficient for Thomas to conclude that the ADEA’s language is ambiguous and thus should not permit the Court to deviate from the default rule. Finally, Thomas takes issue with the standard the majority gleaned from the statute’s language. It is the “any consideration of age” standard, Thomas argues, and it “is so broad that a plaintiff could bring a cause of action even if he is ultimately promoted or hired over a younger applicant.”
Kansas v. Glover
The second opinion of the week comes from Justice Clarence Thomas in Kansas v. Glover, a Fourth Amendment Unreasonable Search and Seizure case. Suppose a police officer runs a vehicle’s license plate and discovers that the owner’s license has been suspended. The officer than assumes that the owner is driving and initiates a traffic stop. Discovering that the owner is in fact the person behind the wheel, the officer issues the owner a citation. Is this an unreasonable seizure in violation of the Fourth Amendment? In other words, is it unreasonable for the officer to assume that the owner of the vehicle is actually the one sitting in the driver’s seat (as the Kansas Supreme Court held)? Justice Thomas, writing for an 8:1 majority, answers “no” as long as there is no evidence to the contrary before the officer pulls the driver over. Chief Justice Roberts and Justices Ginsburg, Breyer, Alito, Kagan, Gorsuch, and Kavanaugh agree. (As a fun fact, this makes the state of Kansas 3-0 on the year before the Supreme Court.)
Thomas begins by looking at what has historically qualified as an “unreasonable” seizure. In United States v. Cortez (1981), the Court held that the Fourth Amendment allows a police officer to initiate an investigative traffic stop when he has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” What is the standard for determining whether that basis is “particularized” and “objective?” The Court answered that in Prado Navarette v. California (2014): It “depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act” (emphasis added). In other words, the Fourth Amendment allows officers to make “commonsense judgments and inferences about human behavior,” and they “need not rule out the possibility of innocent conduct” (quoting Illinois v. Wardlow (2000)).
Thomas next applies these dicta to the facts at hand. The officer knew three things: First, that an individual was driving a car in front of him; second (after running the license plate number), that the registered owner of the car had had his license revoked; and third, that the database’s description of the make and model of the car matched that of the car right in front of the officer. “From these three facts,” Thomas says, the officer “drew the commonsense inference that [the owner] was likely the driver of the vehicle, which provided more than reasonable suspicion to initiate the stop.”
Thomas next argues that “[t]he fact that the registered owner of a vehicle is not always the driver of the vehicle does not negate the reasonableness of [the officer’s] inference.” That’s what makes it both an inference and reasonable. Without empirical verification, the officer cannot know for certain that the owner is driving. Thus, he infers that is the case. How? By piecing together what he does know and coming to the commonsense—or reasonable—conclusion.
Finally, Thomas dismisses the argument that it was unreasonable for the officer to assume that the owner was driving when the driver shouldn’t have been driving at all (since his license had been revoked). “Drivers with revoked licenses frequently continue to drive and therefore  pose safety risks to other motorists and pedestrians.” Thomas adduces empirical studies conducted by government agencies, which confirm “what common experience readily reveals.” Thus, Thomas concludes that, in light of all the facts present, the officer “drew an entirely reasonable inference that [the owner] was driving while his license was revoked,” and thus that the traffic stop did not violate the owner’s Fourth Amendment rights.
Justice Kagan (joined by Justice Ginsburg) pens a short concurrence. While Thomas does not run with the argument that a revoked license makes an inference that the owner is still driving unreasonable, Kagan bites. “[L]et’s be honest,” she says: “[Y]ou just wouldn’t know” whether the owner decided to flout the law (and thus really is driving) or whether the owner decided to obey the law (and thus someone else is driving). So in general, Kagan isn’t so sure that this objection carries no weight.
But there’s something unique (and incredibly fortunate) about this case—something that entices Kagan to join the majority. There’s an otherwise innocuous provision buried in the thousands of Kansas state laws that says a vehicle owner’s license may be suspended only when the owner is a habitual violator of state traffic laws (Kan. Stat. Ann. §8-255). (Specifically, the provision states that the license may be revoked when the owner “[h]as been convicted with such frequency of serious offenses against traffic regulations governing the movement of vehicles as to indicate a disrespect for traffic laws and a disregard for the safety of other persons on the highways.”)
As my grandparents like to say, “Bingo!” Now Kagan can sign on: The officer’s inference in this case is reasonable despite the fact that the owner’s license has been revoked. Why? Precisely because the owner, a Kansas resident, “has already shown a willingness to flout driving restrictions.” And if he’s demonstrated a penchant for this kind of illegality, who’s to say that he suddenly decided to abide by the traffic restrictions this time around? Thus, Kagan narrowly agrees with the majority based on the unique facts of this case. But as for a case presenting different facts (for example, where there isn’t a law for a “habitual traffic-law violator” or where a license was only suspended, not revoked), Kagan might come to a different conclusion.
This time, Justice Sotomayor found herself alone in the dissent. In short, Sotomayor advances two arguments. First, the burden of proof for demonstrating the reasonableness of a seizure “lies with the state.” Thus, she says the majority errs when it holds that an officer’s traffic stop is reasonable if the officer lacks “information negating an inference” that a vehicle’s owner is behind the wheel. Second, she seizes on what sold the case for Kagan: Kansas’ practice of revoking licenses if a vehicle’s owner has a fondness for breaking traffic laws. In Sotomayor’s opinion, this breaks from unreasonable-seizure jurisprudence and “dramatically alters both the quantum and nature of evidence a State may rely on to prove suspicion.”
The Court held no proceedings on Tuesday.
Republican Nat’l Committee v. Democratic Nat’l Committee
Wednesday evening, the Court waded into the Wisconsin state primary elections (and into COVID-19 politics). The five conservative Justices wrote a collective opinion overturning a district court judge’s order to extend the deadline for postmarking absentee ballots until April 13 because of coronavirus. The four liberal Justices dissented, arguing that today’s extraordinary health circumstances justified the judge’s order.
Wisconsin was set to hold its state primary elections on Tuesday, April 7. In late March, however, the Democratic National Committee (DNC) sued the state election commissioners in a federal district court. The DNC, pointing to the COVID-19 pandemic, argued that because of “social distancing” and an “unprecedented influx” of requests for absentee ballots, many Wisconsin voters would not receive their requested absentee ballots until only a few days before (or perhaps even after) election day. Consequently, the DNC sought to get more time: Wisconsin voters must be able to postmark and mail their absentee ballots, and county clerks’ offices must be able to receive and file the absentee ballots. Wisconsin state law (Wis. Stat. §6.87(6)) sets the deadline for postmarking and receiving absentee ballots as election day, April 7. So, the DNC requested the district court judge to do two things (and these are absolutely crucial to the analysis): First, extend the deadline for the clerk’s office to receive absentee ballots until April 13; and second, to “not worry about [whether] the postmark” is dated before April 7. In other words, the DNC argued, tell clerks’ offices to continue accepting absentee ballots until April 13 regardless of whether the ballots were postmarked on or before election day, April 7.
On April 2, five days before election day, the district court judge responded to the DNC’s requests. He pushed back the deadline for both receiving and postmarking absentee ballots to April 13. In effect, the DNC got a bit more than what it asked for. It wanted an extended, hard deadline for receiving absentee ballots and a loose deadline for postmarking them. Instead, the district court judge gave an extended, hard deadline for both.
The next morning, the Republican National Committee (RNC) got involved. It sought a stay of the district court judge’s order in the Seventh Circuit Court of Appeals in Chicago, IL. The Seventh Circuit turned it down. On April 4, the RNC appealed to the U.S. Supreme Court. The RNC’s request was tempered: It appreciated why the district court judge sought to ensure that absentee voters—who could mail their ballot by election day but, because of the COVID-19-hampered postal service and ballot collection offices, may not have their ballot received until after election day—would still have their vote counted. So the RNC didn’t seek a reinstatement of the rigid election-day deadline for receiving absentee ballots. Instead, it sought only to keep the April 7 deadline for the postmarking of absentee ballots. In the RNC’s mind, the district court judge didn’t have the authority to extend that deadline because (1) current Wisconsin state law does not provide a means for extending that deadline and (2) the DNC didn’t specifically ask for that relief.
This latter claim is a bit intriguing. It’s true the DNC did not ask the district court judge specifically to extend the postmark-by deadline. Instead, it advised the judge to “not worry” about the deadline—that is, allow clerks’ offices to receive absentee ballots until April 13 regardless of whether the mailed ballot was stamped on or before April 7. You could interpret this one of two ways: Either the DNC did request (albeit indirectly) a formal extension of the postmark deadline to April 13, or it casually said to forget about the April 7 deadline.
The next day, April 5, the DNC responded with its own filing, asking the Justices to keep the order in place as is. On the evening of April 6—six hours before primary day—the Supreme Court gave its answer in what seemed a hastily written opinion. Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh granted the RNC’s request in full: The election must proceed on April 7; the deadline for voters to postmark and mail absentee ballots is April 7; but the deadline for clerks’ offices to receive and count absentee ballots remains extended to April 13.
The majority’s four-page, per curiam opinion starts by making clear the question the Court must decide. It’s not whether the entire election should be postponed. It’s the “narrow, technical” question whether the district court judge had the authority to extend the April 7 deadline for postmarking absentee ballots. In answering no, the majority first points out the discrepancy regarding whether the DNC actually asked for a hard extension of that deadline. “[T]he [DNC] did not ask that the District Court allow ballots mailed and postmarked after election day, April 7, to be counted,” the majority argues (thus taking the point of view that the DNC only casually and informally said to disregard the deadline). Consequently, when the district court judge extended that deadline, he did so “unilaterally” and ultra vires.
Moreover, the majority says, he did so only four days before the election was to take place. “[C]hanging the election rules so close to the election date . . . contravene[s] this Court’s precedents,” the opinion asserts. In Purcell v. Gonzalez (2006), the Court instructed federal courts to not change the rules governing elections when the election is “imminen[t].” “Purcell . . . [sought] to avoid th[e] kind of judicially created confusion” that is present in this case, the majority says. For these reasons, the majority holds that the district court judge could not extend the deadline for the mailing of absentee ballots beyond April 7.
Justice Ginsburg—joined by Justices Breyer, Sotomayor, and Kagan—dissents. Throughout her opinion, Ginsburg takes a broader view, saying that it “boggles the mind” for the majority to proceed as if this were an ordinary election. The rising fear of COVID-19 has led to a “surge in absentee-ballot requests,” she notes, which in turn “has overwhelmed election officials.” The likelihood that every voter who has requested to vote absentee will actually get their ballot by April 7 is slim to none.
Yet Ginsburg argues that it’s not these developments but “the Court’s order, I fear, [that] will result in massive disenfranchisement” (emphasis added). She turns the majority’s reliance on Purcell on its head. Now it’s the majority who has changed the rules quite literally on the eve of the election. “Election officials have spent the past few days establishing procedures and informing voters in accordance with the District Court’s deadline,” she says. “For this Court to upend the process—a day before the April 7 postmark deadline—is sure to confound election officials and voters.”
These assertions are striking, to say the least. To say that the majority is principally responsible for voter disenfranchisement—not the mess that has ensued because of COVID-19—and that the majority is the one violating the Purcell principle—something the majority rebuts by saying the district court judge forced it to step in and “correct [his] [Purcell] error”—might actually be the things that “boggle the mind.”
Ginsburg next turns to refute some of the majority’s arguments. First, she’s of the mind that the DNC did explicitly ask the district court judge to extend the deadline to April 13 for the postmarking of absentee ballots when it said to “not worry” about the postmark’s date. Second, Ginsburg leaps to the district court judge’s defense. Where the majority worries about his order vis-à-vis Purcell, Ginsburg replies that he was “reacting to a grave, rapidly developing public health crisis,” and that if he violated Purcell, the majority turns right around and does so too. Finally, she suggests that the majority’s reservations about extending the postmark deadline don’t measure up to the worries of the Wisconsin electorate. “The concerns advanced by the Court and the [RNC] pale in comparison to the risk that tens of thousands of voters will be disenfranchised. Ensuring an opportunity for the people of Wisconsin to exercise their votes should be our paramount concern,” she writes.
Contrary to the majority, Ginsburg doesn’t think this case presents a “narrow, technical” question at all. “The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic. Under the District Court’s order,” she maintains, “they would be able to do so.” But under the majority’s ruling, Wisconsin voters are placed in a catch-22: “Either they will have to brave the polls, endangering their own and others’ safety[,] [o]r they will lose their right to vote, through no fault of their own.”
In retrospect, it may seem like the dissent has written the more agreeable opinion. Wisconsin voters should not have to put their lives at risk by braving the elements—i.e., venturing outside in the midst of a deadly pandemic—to exercise their constitutional right to vote. That’s why we have the absentee ballot process. The district court judge, recognizing this grave problem, elected to extend the absentee ballot deadlines to ensure that voters who no longer wish to stand in lines at the polls have time to request, receive, fill out, postmark, and mail their absentee ballots; and that county clerks’ offices have time to receive, file, and count those ballots before the election takes place. Ginsburg, Breyer, Sotomayor, and Kagan say this is the correct decision.
The problem, however, is that each of these judges have now become legislators. Under our constitutional scheme, courts do not have the authority to do what the district court judge did. Article III, Section 2 limits the power of judges to deciding “Cases” and “Controversies” about the law. When two parties dispute the meaning of a law, a judge is tasked with resolving that dispute by interpreting the law’s language and applying that interpretation to the facts present.
Here, Wisconsin’s laws are clear. The primary election must be “held on the first Tuesday in April,” which falls on April 7 this year (Wis. Stat. §5.02(21)). As for the absentee voting process, the relevant statute provides, “The absentee . . . ballot shall be returned so it is delivered to the polling place no later than 8 p.m. on election day. . . . [I]f the municipal clerk receives an absentee ballot on election day, the clerk shall secure the ballot and cause the ballot to be delivered to the polling place serving the elector’s residence before 8 p.m. Any ballot not mailed or delivered as provided in this subsection may not be counted” (Wis. Stat. §6.87(6) (emphasis added)).
If the DNC and RNC had disputed the language of these laws, the district court judge would have had a live case on his hands. But they didn’t. They disputed whether the absentee-ballot deadlines should be extended, on which these laws are utterly silent. Suppose that the absentee-process law had provided an exception, one that extended the election-day deadline, say, “in case of an emergency.” Had this been the case and the parties disputed whether COVID-19 qualifies as such an emergency, now we’d have a live “case” or “controversy.” But there is no such exception.
You might contend this is a bad law given the circumstances. I don’t necessarily disagree (and neither do the five conservative Justices). But if the DNC seeks to change the law’s deadline, that means the law itself must be changed. A clause must be added, for example, providing for an extended deadline in cases of public health emergencies. And that is indisputably the job of the Wisconsin State Legislature. It is not—and cannot be—the job of a judge or court. Such a dispute is a political one, about whether a law should say something different. It is not a legal one about what a law says. Courts may only answer questions about what a law is, not what a law should be. For the district court judge—and the Supreme Court’s dissent—to adopt such authority, they have turned themselves from judges into legislators.
To change the law is a job for the Wisconsin State Legislature. To be fair (and blunt), that is a task at which the Legislature failed spectacularly: It refused to reschedule the primary last week after a Democratic legislator called an emergency session. So it’s unlikely that the State Legislature would have been open to the idea of amending the law to provide for extended deadlines for the absentee process. Again, this is downright disappointing.
It’s likely that the DNC, recognizing such dim prospects for success, thus sought to bypass the state legislature route and try its luck in the courts instead. In effect, the DNC asked the courts to be the adult in the room, predicting that the state legislature would shrink back to partisan interests. I don’t necessarily fault them for doing this. As a judge, I’d be the first to admit that the Wisconsin laws should provide for a deadline exception in the face of a public health crisis. But as a judge, the Constitution prohibits me from acting on that wish. The Constitution instead makes that the duty of the legislator.
And while the Supreme Court’s majority didn’t come out and explicitly express this sentiment, it underlaid its opinion. The “District Court unilaterally” extended the postmark-deadline for absentee ballots (emphasis added); his order was of an “unusual nature”; he took these measures “on [his] own.” “[We] cannot . . . stress enough” that “[our] decision on the narrow question before [us] should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate,” the majority writes. Indeed, it can’t. The majority was tasked only with deciding whether the district court judge overstepped his constitutional bounds of authority. Clearly, he did.
Several media outlets, legal analysts, and columnists denounced the majority’s ruling. “The five conservative justices refused to extend the deadline for absentee ballots in Wisconsin in the middle of the pandemic,” Linda Greenhouse wrote for the New York Times. “The Supreme Court this week failed not only the voters of Wisconsin. It failed all of us,” she further proclaimed. Law professor Garrett Epps for The Atlantic called the majority’s ruling a “cho[ice] [of] reckless partisanship.” Another law professor, Leah Litman, echoed Ginsburg’s dissent: “The Court forced Wisconsin residents to choose between voting and staying safe” (emphasis added). She further asserted that the ruling is “an ominous harbinger for what the Court might allow in November in the general election,” and that the five Justices in the majority “deserve” neither “respect nor deference.” The Washington Post‘s entire editorial board castigated the decision. Finally, the award for Most-Bitter-Coverage goes to Brent Budowsky for his op-ed in TheHill. He called the decision “unconscionable,” “dastardly” (twice), an “undermin[ing] [of] democracy,” a “mock[ery] [of] the strong advice of [health] experts,” and “support for Republican politicians.” To top it off, he ended his piece by calling for a “national debate about the composition and role of the court in a nation that deserves better than party-line votes that undermine our democracy and now, endanger our health.”
Are these commentators really arguing that, by answering only a legal question and deliberately making sure that it didn’t weigh in on a political question, the Court majority’s decision was political? That’s as absurd an argument as any.
Unfortunately, this refrain isn’t new. Columnists have been singing it increasingly loudly in recent years, arguing the Court has become too politicized and ought to be restructured (even though several restructuring proposals would inject yet more partisanship).
In the spirit of Chief Justice Roberts, the way to stop the politicization of the Court is to stop politicizing it.
The majority decided only what the Constitution allows it to decide: the “narrow, technical,” legal question whether the district court judge had the authority to alter Wisconsin state law and extend the deadline for the postmarking of absentee ballots. The majority answered “no,” and rightfully so. I understand this comes at the expense of the Wisconsin voters. As I said, no one should have to risk their life to exercise their constitutional right to vote. It’s incredibly disappointing that the Wisconsin State Legislature failed to do its job in this respect. But to cast blame on the Supreme Court is to misunderstand our constitutional republic.
Lost amid the torrent of criticism was an op-ed in the Washington Post. “Don’t like the Wisconsin election mess?” it asked; “[d]on’t blame the courts.” “What happened last week in Wisconsin — citizens being forced to risk exposure to a deadly virus in order to vote — was an atrocious fiasco. Wisconsin’s GOP-controlled legislature deserves to be castigated for allowing it to happen,” it wrote. “Just don’t blame the courts.”
What might have happened had Ginsburg’s dissent carried the day? The op-ed answers that question for you:
“[C]onsider a scenario that contrary rulings might have justified: A governor from a political party opposing yours, perhaps fearing an electoral loss for himself or an ally, such as the president, orders that an election or election deadlines be postponed, and extends his or other officials’ terms accordingly, or sues to do so. He points, perhaps, to a second-wave flare-up of covid-19, but his true motives can’t be proved. For precedent, he would have been able to rely on the two Wisconsin cases—had they gone the other way.
Is that the result you want? If it isn’t, then you should applaud the courts in the Wisconsin cases for upholding the rule of law. And you should put the blame for allowing risky in-person voting squarely where it belongs — on Wisconsin’s legislature.”
I haven’t yet said who wrote the op-ed. It was a duo. One author is George T. Conway III (the husband of Kellyanne Conway), an attorney who has argued—and won unanimously—a case before the Supreme Court and who has called President Trump “unfit for office.”
The other is David Lat. Lat is a graduate of Harvard College and the Yale Law School and the founder of the towering Above the Law blog. And he was recently discharged from the hospital, where he spent seventeen days suffering from COVID-19 and six days on a ventilator.
The Court held no proceedings on Thursday and Friday.
Some high profile cases the Justices are considering include:
- Box v. Planned Parenthood of Indiana & Kentucky, Inc. This case challenges an Indiana state abortion law that requires women who seek an abortion to, among other things, undergo a fetal ultrasound eighteen hours before the abortion is performed. The question presented is whether such an ultrasound requirement violates a woman’s Fourteenth Amendment rights.
- Arlene’s Flowers, Inc. v. Washington. This case is a mirror-image to that of Masterpiece Cakeshop, Ltd. v. Colorado, on whose merits the Court punted in 2018. The questions before the Court are (1) whether a state violates a floral designer’s Free Exercise and Free Speech rights by forcing her to create custom floral arrangements celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and (2) whether the Free Exercise Clause’s prohibition on religious hostility applies to the executive branch.
- United States v. California. This case involves the Trump administration’s challenge to California’s statewide “sanctuary” law. The law prohibits state law-enforcement officers from providing information about immigrants (both legal and illegal) to federal immigration officials. The question before the Court is whether federal immigration law preempts California’s sanctuary law—and others like it in cities and states around the country—under the Supremacy Clause of the Constitution.
- Worman v. Healey. This case concerns a Massachusetts state law that bans, inter alia, semiautomatic “assault weapon[s]” and magazines capable of accepting 10+ rounds of ammunition. The question presented is whether that law violates the Second Amendment to the Constitution.
- Malpasso v. Pallozzi. This is a constitutional law case asking whether a state law that categorically prohibits residents from carrying handguns outside the home for self-defense violates the Second Amendment.
- Reisman v. Associated Faculties of the University of Maine. This case mixes labor unions with the Free Speech Clause of the First Amendment. The question presented is whether it violates the First Amendment to designate a labor union to represent and speak on behalf of public-sector employees who object to its advocacy.
- Territory of Guam v. Davis. This case concerns a unique Fifteenth Amendment challenge to a political referendum Guam undertook under the 2000 Plebiscite Law. The federal territory allowed only “native inhabitants of Guam” to vote on the island’s future political status with the United States. The question presented is whether the Fifteenth Amendment permits Guam to invite only “native inhabitants of Guam” to participate in a potential political-status plebiscite that would yield only a nonbinding, symbolic expression of self-determination preferences.
- Collins v. Mnuchin. This case concerns a constitutional challenge to the structure of the Federal Housing Finance Agency (FHFA), a mirror-image case to that of Seila Law v. CFPB, the challenge to the structure of the Consumer Financial Protection Bureau. The questions presented in Collins are (1) whether the structure of the FHFA violates the separation of powers, and if so (2) whether the actions of the FHFA must be annulled and the statute creating its structure struck down.
The Week Ahead
The Court has postponed the oral arguments that were scheduled for next week. On Monday the Justices will release orders from Friday’s conference at 9:30am, and there is a possibility of opinions at 10:00am. On Friday, the Justices will hold their weekly, private conference—now conducted over the phone out of caution for COVID-19.