On October 26th, Amy Coney Barrett was confirmed to the United States Supreme Court in a last-minute effort by the Republican Party to subvert the democratic will of the people and increase the court’s conservative majority. The unqualified Barrett replaces the late Justice Ruth Bader Ginsburg, a trailblazer in the fight for gender equality under United States law, whose last wish was that her position on the court not be filled until after the installation of a new president. Barrett’s confirmation just eight days before the election will not just secure conservative decisions for upcoming cases on immigration, Obamacare, and same-sex marriage, but also has the potential to impact politics as soon as Tuesday, November 3.
This push to confirm Judge Barrett signals Republican anxiety over the presidential election. Senator Joe Manchin of West Virginia recently argued that “there’s not a judicial crisis. There’s still five conservatives to three progressives. What are they afraid of that they need assurance? The election and the Affordable Care Act.” The Supreme Court has decided a presidential election twice: once in 1876, resulting in a Rutherford B. Hayes presidency at the cost of a premature end to Reconstruction in the south; and, more infamously, in the 2000 election between George W. Bush and Al Gore. The Supreme Court has a tradition of not deciding cases seeking to resolve purely political cases, yet, in 2000, Justice Antonin Scalia argued for a stay on the Florida Supreme Court’s recount, specifically citing that different methods of counting ballots in different counties violated the Equal Protection Clause, despite the court’s consistently delegating electoral processes to state governments and permitting great variation between one state and another. Many would consider this to be a purely political question. It is also worth noting that Amy Coney Barrett considers Antonin Scalia, under whom she clerked, to be a great inspiration and ideological ally.
Recent Supreme Court decisions could have a huge impact on the election, possibly even determining its outcome. More than 230 lawsuits have been filed in federal courts regarding the election at the time of writing, and more will surely originate from the massive predicted turnout. The Supreme Court’s seemingly-contradictory decisions in recent weeks over mail-in ballots open the door to a legal dispute that could decide the election.
Last Wednesday, a tie vote resulted in a SCOTUS decision upholding the status quo in Pennsylvania, allowing a 3-day window during which any absentee ballots received may still be counted to remain in effect. However, this case could still be revisited this election cycle, and Barrett’s extra conservative vote would likely nullify any extra ballots. It is highly likely that Pennsylvania, a rust-belt swing state and the place of Joe Biden’s hometown, could be critical to the outcome of the election. On the same day, a Supreme Court decision blocked a similar extension on an emergency November 6 deadline to receive ballots in North Carolina, where Biden could eek out a narrow win over Trump. However, the court decided that ballots in Wisconsin must be received by the close of polls on election day in order to be counted.
Chief Justice John Roberts said of Wednesday’s decisions that, “different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of the election rules in Pennsylvania but not Wisconsin.” This contradiction, as well as the precedent set in Bush V. Gore, creates cause for concern about the strength of our electoral institutions. If nine unelected justices serving life terms can overturn the electoral will of the American people (which, of course, it has), what role does democracy play in our allegedly democratic system of governance?
The majority decision in Bush v. Gore states that it applies only to the circumstances of the case, but Amy Coney Barrett’s addition to the court adds another layer of partisan complexity: now three former lawyers who worked for the Bush campaign in the 2000 case (Barrett, Roberts, and Kavanaugh) serve on the Supreme Court.
Should the election end up in the Supreme Court, as President Donald Trump predicts, we already know how it will be decided. Chief Justice Roberts famously claimed during his confirmation that justices are the nonpartisan arbiters of the law, only calling “balls and strikes,” implying that an objective interpretation of the law is not only possible but the default practice. This history should beg the question in the mind of every citizen: if three justices worked in the past to further the Republican agenda against the will of American voters, how can we expect them to behave impartially on Tuesday?