Amy Coney Barrett became the 115th Supreme Court Justice Tuesday when Chief Justice John Roberts administered the judicial oath of office in a private ceremony at the court. A Newly Sworn In Justice Barrett Faces A Motion To Recuse Herself In Election Case:
Barrett immediately was faced with an unusual motion seeking her recusal in an election procedures case currently pending before the court from Pennsylvania.
The motion to recuse was filed by the Luzerne County Board of Elections in an 11th-hour case brought by the Republican Party and Republican state legislators. Citing federal ethics laws that require a judge to recuse herself if her impartiality might reasonably be questioned, the elections board contends that the nomination and confirmation of a Supreme Court justice right before a presidential election is not only “unprecedented,” but “even more troubling” is President Trump’s own statements linking Barrett’s nomination “directly to … his own current re-election,” should the results of the election be challenged in court.
In an indication of what a red-hot controversy this is, the county board rescinded the motion after an emotional debate Tuesday by the county council. But it is likely that similar motions will be filed in future cases.
The motion to recuse came on a hectic day for Barrett when the last chip fell into place for her ascension to the high court– Roberts administering the judicial oath.
[T]he recusal question added yet another question before Barrett … It arises in an effort by Pennsylvania state Republicans to get a second bite at the apple in an election case decided by the court last week by a tie vote. The issue last week: whether to allow absentee ballots to be counted up to three days after the election, as long as the ballots were postmarked by election day. Chief Justice Roberts sided with the court’s three liberals in the case based on his view that in a situation like this, close to the election, state courts should be able to interpret state law. The court’s other conservatives wanted to block the state court ruling, but a tie vote means the state court ruling remains in place.
Once Barrett’s nomination was reported to the Senate floor last Friday, however, the Pennsylvania Republican Party went back to the Supreme Court seeking for a second time to block the state court ruling, but using a new legal maneuver. And it is that case that Barrett, now officially a sitting justice, could participate in unless she recuses herself.
Ultimately, when dealing with recusals at the U.S. Supreme Court, each justice decides for himself or herself whether to recuse from a case.
Cue the timpani drums: The Washington Post reports, Supreme Court won’t expedite GOP request to stop Pennsylvania’s extended deadline for mail-in ballots:
The Supreme Court said Wednesday that it will not intervene before the election to stop Pennsylvania officials from counting mail-in ballots received up to three days after Election Day, refusing a Republican request that the high court expedite review of the issue.
But the issue is not settled, and three conservative justices indicated the votes might not ultimately be counted.
New Justice Amy Coney Barrett did not participate in considering the motion, the Supreme Court said, because of the need for a prompt resolution, and because she has not had time to fully review the request. [I would caution that this is not a recusal, as some media outlets are incorrectly reporting, and it will not preclude her from participating in the later arguments on the merits of the case].
Three radical conservative justices signaled that they would like to overturn the Pennsylvania Supreme Court’s ruling under the state’s Constitution, which is the exclusive province of state courts under our system of federalism, and state administration of elections under the U.S. Constitution, asserting that it somehow violates the federal Constitution — because we say so.
They criticized the ruling by the Pennsylvania Supreme Court that called for three extra days to receive mail-in ballots because of the crush of requests brought on by fears of the coronavirus pandemic was likely unconstitutional.
“There is a strong likelihood that the State Supreme Court decision violates the Federal Constitution,” wrote Justice Samuel A. Alito Jr., who was joined by Justices Clarence Thomas and Neil M. Gorsuch.
“The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.”
The Pennsylvania Supreme Court decision to grant the extra time was based on a “free and fair elections clause” in the state constitution.
The justices who voted not to accept the Republican request did not explain their reasoning, although the court said additional statements may be forthcoming.
Justice Brett M. Kavanaugh, who had voted with the other three conservatives to deny a previous Republican request to stop the deadline extension, did not join Alito’s statement.
It appears that Justice Kavanaugh may have been spooked by being roundly criticized in the legal community for his opinion in the Wisconsin election challenge earlier this week, citing Chief Justice William Rehnquist’s concurrence in Bush v. Gore, which argued the exact same position as Justice Alito above: that state legislatures, not the courts, decide election law. Rehnquist’s concurrence did not attract a majority, it is not precedent, and in Bush v. Gore the court expressly cautioned that it is not to be cited as precedent.
Justice Alito’s position would require the reversal of Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. 787 (2015), in which the Court upheld the right of Arizona voters to remove the authority to draw election districts from the Arizona State Legislature and vest it in an independent redistricting commission. Like Pennsylvania Republicans here, the Arizona Legislature argued that the creation of the AIRC violated the Elections Clause of the U. S. Constitution. Justices Roberts, Thomas and Alito dissented, as did the late Justice Scalia, the mentor of Amy Coney Barrett.
On Oct. 19, the Supreme Court’s 4 to 4 vote left the Pennsylvania court’s earlier ruling in place.
But Republicans renewed their request when it became clear that Barrett, Trump’s third appointee to the court, would be confirmed in time to make a last-ditch pitch.
Trump on Wednesday said at a new conference that he was depending on courts to keep states from counting ballots received after election day, even those clearly postmarked before then.
“Hopefully the few states remaining that want to take a lot of time after Nov. 3rd to count ballots, that won’t be allowed by the various courts,” the president said.
Trump is openly advocating disenfranchising voters who have, in good faith, cast a legally valid ballot. This should be disqualifying for any candidate for political office. This is un-American.
A political party which must rely on voter intimidation and voter suppression to win elections lacks any legitimacy, and is unworthy of being entrusted by the voters with governance. Voters must soundly reject a Republican Party that insists it has the right not to count your votes.
The president apparently was referring to ballots received after Nov. 3, because states always are counting votes after election day, and do not certify the outcome for weeks.
Alito noted that “the court’s denial of the motion to expedite is not a denial of a request for this court to order that ballots received after election day be segregated so that if the State Supreme Court’s decision is ultimately overturned, a targeted remedy will be available.”
Justice Alito is signaling that this Pennsylvania election challenge may decide the election — an election to be decided by a highly partisan U.S. Supreme Court, rather than the millions of voters who stood in line for hours to cast a ballot. This is not America.
The Republican election theft is officially teed up in the U.S. Supreme Court. This is how the tyranny of the minority of authoritarian white Republicans gives its legal imprimatur to the imposition of a GOP autocracy.
The only way you can prevent this crime against the Constitution and our democratic Republic from occurring is with a decisive Biden win in the popular vote and electoral vote, so that Justice Alito’s meddling with Pennsylvania’s 20 electoral votes cannot be decisive.
And then we must seriously consider impeaching Supreme Court Justices who act as if they are an unelected and unaccountable super legislature who can overturn the will of the voters and even the states.
The Founding Fathers are spinning in their graves right now. The sun is setting on American democracy. Resist!