Brett Kavanaugh’s friendly message to Donald Trump
On Monday, the Supreme Court issued a ruling prohibiting Wisconsin from counting mail-in ballots that arrive after Election Day. In a concurring opinion, Justice Brett Kavanaugh raised troubling concerns about whether he’ll be independent of the man who named him to the court.
Kavanaugh wrote, “If the apparent winner the morning after the election ends up losing due to late-arriving ballots, charges of a rigged election could explode.”
(Kavanaugh quotes from a law review article by Professor Richard Pildes, a current CNN Contributor, whose words were actually in support of extending mail-in ballot deadlines; it is one thing for a professor to theorize in a scholarly piece, and quite another for a justice to take that language out of context and to use it in a decision of the Supreme Court).
Kavanaugh’s statement is baldly political and potentially dangerous. First, Kavanaugh adopts and eagerly amplifies Trump’s ongoing effort to cast doubt on the legitimacy of mail-in ballots, despite the complete lack of evidence of significant fraud. Trump has pushed publicly for ballots counted after November 3 to be discarded — contrary to many states’ laws — tweeting on Monday, “Big problems and discrepancies with Mail In Ballots all over the USA. Must have final total on November 3rd.”Senate Majority Leader Mitch McConnell similarly tweeted in September that “the winner of the November 3rd election will be inaugurated on January 20th.” McConnell’s phrasing — “the November 3rd election” — conspicuously excluded any mail-in ballots counted afterwards.
And Kavanaugh’s opinion could stoke potentially dangerous public reactions if the election should end up disputed. As a Supreme Court justice, Kavanaugh certainly knows to choose his words carefully. Yet, he writes that “If the apparent winner the morning after the election ends up losing due to late-arriving ballots, charges of a rigged election could explode,” provocatively using a phrase recently used by Trump himself to incite fear of election fraud. Given the possibility for civic unrest, Kavanaugh’s language here is wildly irresponsible.
More broadly, if the Supreme Court wants to retain any shred of institutional legitimacy, the justices need to start deciding election-related cases based on law, not politics. Over just the past few days, we have seen both ideological wings of the Supreme Court, conservative and liberal, essentially flip-flop their legal principles to engineer results that maximize electoral advantage for their preferred political parties.
On Monday, the Supreme Court issued a ruling prohibiting Wisconsin from counting mail-in ballots that arrive after Election Day. In a concurring opinion, Justice Brett Kavanaugh raised troubling concerns about whether he’ll be independent of the man who named him to the court.
Kavanaugh wrote, “If the apparent winner the morning after the election ends up losing due to late-arriving ballots, charges of a rigged election could explode.”
(Kavanaugh quotes from a law review article by Professor Richard Pildes, a current CNN Contributor, whose words were actually in support of extending mail-in ballot deadlines; it is one thing for a professor to theorize in a scholarly piece, and quite another for a justice to take that language out of context and to use it in a decision of the Supreme Court).
Kavanaugh’s statement is baldly political and potentially dangerous. First, Kavanaugh adopts and eagerly amplifies Trump’s ongoing effort to cast doubt on the legitimacy of mail-in ballots, despite the complete lack of evidence of significant fraud. Trump has pushed publicly for ballots counted after November 3 to be discarded — contrary to many states’ laws — tweeting on Monday, “Big problems and discrepancies with Mail In Ballots all over the USA. Must have final total on November 3rd.”Senate Majority Leader Mitch McConnell similarly tweeted in September that “the winner of the November 3rd election will be inaugurated on January 20th.” McConnell’s phrasing — “the November 3rd election” — conspicuously excluded any mail-in ballots counted afterwards.
And Kavanaugh’s opinion could stoke potentially dangerous public reactions if the election should end up disputed. As a Supreme Court justice, Kavanaugh certainly knows to choose his words carefully. Yet, he writes that “If the apparent winner the morning after the election ends up losing due to late-arriving ballots, charges of a rigged election could explode,” provocatively using a phrase recently used by Trump himself to incite fear of election fraud. Given the possibility for civic unrest, Kavanaugh’s language here is wildly irresponsible.
More broadly, if the Supreme Court wants to retain any shred of institutional legitimacy, the justices need to start deciding election-related cases based on law, not politics. Over just the past few days, we have seen both ideological wings of the Supreme Court, conservative and liberal, essentially flip-flop their legal principles to engineer results that maximize electoral advantage for their preferred political parties.
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