Can SCOTUS Avoid Sullying Itself In November?

Amy Coney Barrett has been confirmed as our newest Supreme Court Justice. No surprise there! Personally I harbor some expectation that she will deal Trump some surprises. Let us hope.  Meanwhile...

The Washington Post ran an editorial yesterday morning suggesting that the vote be delayed until after the election, on the premise that Trump would then still have his remaining time in office to get her confirmed, but she would not be in a position to be embroiled in deciding elections results.  Hah! Not a bad suggestion, but of course no one paid the least attention to it.

The Post also argued that Barrett should recuse herself from any case arising from the November 3 election, not because she couldn't be open-minded, but because any decision favoring Trump would inevitably be seen by the public as payback, and redound against the Court's reputation for impartiality. I agree. In fact did agree, in Morning Fog October 14. But as I also said there, Barrett's recusal, even if she chooses to do so, is insufficient to salvage the Court's reputation. Any Court decision on election outcomes, with or without Barrett's vote, is going to have the same deleterious effect on the Court's perceived legitimacy.

The only answer is for the Supreme Court to refuse to take up any cases related to election outcomes. Our existing election procedures have been sufficient in the past, and should be now. Those procedures are established entirely by states, or even counties, so shouldn't decisions of the states' supreme courts be legitimate? Would it even be legit for SCOTUS to be involved? WAS it legit for it to involve itself in that decision of 2000? Of course lawyers can make it seem that legally, 2 + 2 ≠ 4, but it is the public perception of nonpartisan fairness that is essential to Supreme Court legitimacy.

One good that might come from the furor over this election, Barrett's confirmation, the President's self-serving innuendo, and talk of Supreme Court involvement, would be an impetus to create and legislate a consistent and uniform set of procedures and parameters to apply to all elections of federal officials. It's high time.

 

 

Comments

[PiedType]

Bush v. Gore was a travesty that should never be repeated. If a state can't get its ballot count done properly, let them redo the election. But it's theirs to handle, not the Supreme Court. For that matter, how does some federal agency get to tell a state which ballots they can and cannot count -- such as mail-in ballots that are counted several days after Election Day?

Barrett (or is it Coney Barrett?) should indeed recuse herself. But let's just hope nothing about this election ends up in the Supreme Court's lap. I suspect we'll have more than enough chaos without that.

[JHawk23]

I hope the horse isn't already out of the barn as the Court has already rendered opinions on two or three cases involving states' provisions for accepting (or not) mailed ballots that arrive after the election date. So far there appears to be some sense of reserve, but it's a slippery slope.