Author: Henry Wray

As various themes emerge from the 2022 midterm elections, one stands out above all others: the thorough repudiation of Donald Trump. While Trump was not on the ballot, he did all he could to make the election about him. He largely succeeded in this, but the results were ugly for him and his party. Most of the candidates he pushed in the primaries failed in competitive general elections. Even some who prevailed ran well behind other Republicans on the ticket. For example, J.D. Vance probably won his Senate seat despite rather than because of Trump; GOP Governor DeWine ran far ahead of Vance and likely pulled him over the finish line. (Tellingly, Vance ignored Trump in his victory speech.)

By contrast, GOP candidates whom Trump opposed or stayed away from did well. In particular, Trump nemesis Brian Kemp handily won reelection as Governor of Georgia and potential nemesis Ron DeSantis scored an overwhelming victory in Florida.

Candidates who actively campaigned on Trump’s bogus stolen election claims fared poorly in competitive elections. Thankfully, all election deniers running for offices with election administration roles in potential swing states lost. We can also be thankful that losing GOP candidates across the board have eschewed Trump’s stolen election tactics—at least so far.

The abysmal results of Trump’s efforts this year represent only the latest in a string of political failures on his part. With Trump at the helm, Republicans lost the House in 2018 and the presidency in 2020. Trump’s stolen election antics in the wake of his 2020 defeat are widely considered directly responsible for the loss of the two Georgia seats that cost the GOP its Senate majority.

It’s fair to say Trump personally cost Republicans control of the Senate again this year by discouraging strong GOP candidates from running in several states and backing weak candidates in others, based solely on their professed fealty to him. Democrats will wind up actually gaining a Senate seat if Herschel Walker, Trump’s most pathetic pick, loses his runoff election in Georgia. Trump was also a drag on the GOP’s unexpectedly challenging efforts to regain control of the House. He helped flip two safe Republican seats to the Democrats by engineering successful primary challenges by weak candidates to Republican incumbents who had voted to impeach him. (See here and here.)

Some right-leaning media outlets acknowledged Trump’s electoral failures. A Wall Street Journal editorial declared him the Republicans’ “biggest loser” of election night. The New York Post portrayed him as “Trumpty Dumpty.” Outlets on the left enthusiastically chimed in, labeling the 2022 elections Trump’s “emperor has no clothes” moment. (See here and here.)

Democrats anticipated Trump’s potential as a major liability for the GOP in 2022. They invested heavily in Republican primaries to promote his favored candidates, whom they judged easier to beat in the general election. Such meddling was widely (and rightly) condemned as a cynical abuse of the electoral process. However, it worked in many close contests. No doubt we will see more of this if Trump chooses to run for president again in 2024 or seeks to reprise his failed role as kingmaker.

Exit polls confirmed Trump’s negatives. Voters viewed him unfavorably by a margin of 58 to 39 percent. These numbers are worse than President Biden’s low marks and suggest that Trump would lose the presidential election again in 2024 against even a weak Democratic candidate.

When all the above political failures are added to Trump’s outrageous, clearly impeachable, and perhaps criminal conduct following his 2020 loss, one might think sentient Republicans would be chomping at the bit to move on from him. Trump proves over and over that he is focused entirely on himself and cares nothing about the country, the Republican Party, or even his most dedicated followers. It’s hard to imagine anyone more transparently unfit, substantively and politically, to run for president—or even to play a significant role in the 2024 election. As of this writing, however, it appears Republicans may not be ready to stop following Trump over more cliffs. Said one political operative: “We tend to be slow learners.”

There are probably two main factors at play here. First, Trump retains an unshakable and sizable base of cult-like followers that is not open to persuasion and may not be transferable even to Trump-imitating candidates. Second, many prominent Republican politicians are craven opportunists who, like Trump, put their personal interests above country and party. They have lived in fear of Trump and dependent on his favor for years. While they surely recognize his liabilities, it will be very hard for them to muster the courage to oppose him.

Some signs are emerging. Rep. Elise Stefanik, a Trump sycophant who replaced Liz Cheney in the House GOP leadership following her cancellation for opposing Trump, endorsed Trump for 2024 three days after the election. She described him as still the leader of the Republican party and “the most popular Republican in America.” Kevin McCarthy, who desperately wants to be Speaker if Republicans gain the House majority, has been noncommittal so far. However, he has a history of backing off criticism of Trump and is already under pressure from Trump operatives and the Trumpist House Freedom Caucus.

On the Senate side, some members are trying to shift blame for the GOP’s poor election showing from Trump to Mitch McConnell. Of course, McConnell is a long time Trump whipping boy who most recently had the audacity to tell the truth about the “candidate quality” problem facing Republicans this year thanks to Trump.

How all this plays out remains to be seen. We should learn more from the reactions if Trump goes ahead with his anticipated (albeit incongruous) announcement on November 15 to run again for President.

 

 

Warnings that the Supreme Court is fundamentally at odds with the American public are overwrought on two levels. First, the alleged rift between the Court and the public is greatly exaggerated. Public opinion divides sharply on most controversial issues the Court addresses, with major segments of the population on either side of any given case. More often than not, the Court’s decisions align with public opinion overall. The real disconnect is not between the Court and the public at large but between factions of the public. Second, basing decisions on perceived popular sentiment would be disastrous both for the Court and for the public. It would reduce the justices to mere “politicians in robes” and rob the Court of any credibility. Given current cultural trends, it could also lead to major retrenchments in existing constitutional rights.

One complaint by critics who challenge the credibility or even the “legitimacy” of the Supreme Court is that its decisions are increasingly out of sync with public opinion. Even Justice Elena Kagan raised the alarm when she observed at a recent conference:

“I’m not talking about any particular decision or even any particular series of decisions, but if over time the court loses all connection with the public and with public sentiment, that’s a dangerous thing for a democracy.”   

Clearly, there is a major disconnect between many of the Court’s recent decisions and the sentiment of Democrats, particularly those on the far left in politics, academia, and the media. However, this schism does not carry over to the general public.

Researchers polled public opinion on a series of high-profile, controversial cases pending before the Supreme Court in 2021 and 2022, grouping respondents into Republicans, Democrats, or Independent/others. Then they compared the poll results to how the Court decided each case. For most of the cases, public opinion was sharply and often closely divided among the respondent groups. Overall, the Court’s decisions aligned with majority public opinion more often than they differed. The poll majority agreed with the Court in 13 of 24 cases; opinion was evenly split (less than 1 percent difference) in three other cases. In several cases where the Court departed from the poll majority the difference between the majority and minority was less than 5 percent. In two cases where the Court ruled counter to the poll majority its decisions were unanimous.

The study results reveal a major divergence not between the Court and the public as a whole but between segments of today’s highly polarized public. Republican and Democratic opinion rarely aligned. Republicans agreed with the Court in 20 of the 27 cases; Democrats agreed with the Court in only eight cases. Independent/others fell in between but were closer to Republicans. They agreed with the Court in 15 of 25 cases and split evenly in the other two.^[1]Curiously, the study’s authors portrayed the results as showing that the Supreme Court is “operating outside of American public opinion” and that its decisions  diverged from the views of … Continue reading

Even in the highest profile case where the Court bucked public opinion—Dobbs v. Jackson Women’s Health Association, which overruled Roe v. Wade—the public’s views are quite nuanced. The same polls that show large majorities of the public opposed to overruling Roe find that majorities still favor significant limits on the right to abortion, some of which are inconsistent with Roe. For example, contrary to Roe, majorities in several polls supported generally prohibiting abortion beyond 15 weeks of pregnancy. A Harvard-Harris poll taken shortly after Dobbs was decided found an even more striking internal contradiction. While a clear majority of respondents opposed Dobbs, only 25 percent believed the Supreme Court should set abortion standards. The other 75 percent said doing so was better left for Congress or state legislatures.^[2]See pages 40-42 of the poll results. Of course, this gets Roe and Dobbs precisely backwards.

Looking at other measures of public opinion, the most recent Gallup poll found that public approval of the Court declined significantly over the past two years.^[3]Public confidence is down as well for most other American institutions. The Court still earns much more credence than its critics in Congress and the media. However, the poll shows that the Court’s popularity ebbs and flows from year to year and that much of the churn reflects our political polarization. For example, while the Court’s favorability among Democrats fell to an all-time low this year, its popularity among Republicans rose dramatically. Independents were, again, in between—far less positive toward the Court than Republicans but far less negative than Democrats

The Court’s popularity likely reflects public reaction to a few high-profile decisions from each term. The key decision this year was Dobbs, which was quite unpopular. The tables may turn next year when the highest profile cases on the Court’s docket challenge the constitutionality of race-conscious admission practices by universities. Such practices are overwhelmingly opposed by the public.^[4]According to a Pew poll, 74 percent of the overall public opposes such practices as do majorities of Republicans, Democrats, whites, Blacks, Hispanics, and Asian-Americans. In any event, public disagreement with particular decisions doesn’t necessarily translate to condemnation of the Court as an institution. Although a strong majority (55-45) of respondents in the Harvard-Harris poll cited previously disapproved of the Dobbs decision, even stronger majorities still considered the Court “legitimate”(63-37) and opposed attacks on its legitimacy (59-41).^[5]See page 43 of the poll results.

To summarize, then, the Supreme Court is indeed very unpopular with Democrats and virtually anathema to the most liberal. However, it is not seriously out of sync with American public opinion as a whole or in any danger of losing all connection with the public. But what if it were?

Most thoughtful people would agree that the Court’s decisions (and those of lower courts) should not be driven by public opinion; otherwise, the judiciary would be reduced to nothing more than political actors. The Constitution grants the justices (and other federal judges) lifetime tenure. This was designed to ensure the independence of the judiciary not only from the political branches but also from the public. As Alexander Hamilton put it in Federalist No. 78, an independent judiciary is “an essential safeguard against the effects of occasional ill humors in the society.” It would be particularly dangerous for the Court to render decisions with a finger to the wind of public opinion in these troubled times. Ill-humored opinion influencers in academia and elsewhere are increasingly hostile to such core constitutional protections as freedom of speech, due process, and equal protection of the law.

No doubt the Court’s effectiveness would be severely jeopardized if it lost all credibility with the public. However, the best way for the Court to maintain its credibility is not to curry favor with political partisans or the general public. Rather, it is for the justices to ground their decisions in their best sense of the law without regard to the political consequences. Justice Kagan made this very point in her remarks referenced earlier:

“Overall, the way the court retains its legitimacy and fosters public confidence is by acting like a court, is by doing the kind of things that do not seem to people political or partisan, by not behaving as though we are just people with individual political or policy or social preferences.”  

The Court’s credibility would also be helped if political partisans and ideologues on both sides stopped undermining it. The Court’s detractors should sick to substantive critiques of its decisions and cease their bogus attacks on the “legitimacy” of the Court as well as their trashing of individual justices. The Senate should depoliticize the confirmation process and resurrect the merit-based approach it followed for many years. Specifically, it should reinstate the 60-vote threshold for confirming justices (and other judges) along with the principle that judicial nominees are entitled to confirmation if they are substantively and ethically qualified.

While Supreme Court decisions are legitimately subject to debate, there is nothing “illegitimate” about the Court or its decisions. Critics who say otherwise know better. Their real concern is that the current Court majority takes a more rigorous approach to interpreting the Constitution than past majorities, and one less likely to produce policy results the critics favor.      

Criticism of the Supreme Court from left-leaning politicians, pundits, and academics has ramped up in recent years as the Court became increasingly “conservative” and reached more decisions disfavored by liberals. The Court’s decisions are, of course, fair game for substantive debate. However, many critics go well beyond disagreement and insist that there is something “illegitimate” about the Court. They claim that it needs a “reckoning” in order to “repair” its alleged shortcomings through court-packing or other “reforms.” Attacks on the legitimacy of the Court reached a crescendo with the issuance of Dobbs v. Jackson Women’s Health Organization, overruling Roe v. Wade. (See, e.g., here, here, and here.) Under heavy pressure from Democrats, President Biden joined in, trashing the Court as “out of control.”

In fact, there is nothing remotely illegitimate about the Supreme Court. Both political parties have violated norms and turned the judicial confirmation process into a hyper-partisan farce. The makeup of the Court reflects, in part, political maneuvering by both parties. (Republicans infamously ignored the Garland nomination, enabling Justice Gorsuch’s appointment. Justices Kavanaugh and Barrett would not be on the Court without Senate Democrats’ frivolous and strategically foolish filibuster of the Gorsuch nomination.) However, all members of the Court were duly appointed and confirmed in accordance with the Constitution and all applicable rules. It’s actually remarkable that today’s shameful process still manages to produce high-quality Justices.

Most of the Court’s cases deal with controversial issues that present plausible arguments on both sides. That’s why they reach the Supreme Court. One can certainly maintain that the Court got it wrong, even egregiously wrong, in any given case. But that is a far cry from asserting that a decision is “illegitimate,” as do many critics of Dobbs. If being wrong was enough to make a decision illegitimate, Roe would be a likelier candidate than Dobbs. Roe was always dubious as a matter of constitutional law; its legal reasoning (or lack thereof) has been widely criticized across the ideological spectrum ever since the decision was issued. Subsequent judicial efforts to salvage it relied almost exclusively on stare decisis and pragmatic considerations rather than its legal merits.

Roe was also the more “activist” decision. In an article published shortly before Roe was decided, liberal pundit Linda Greenhouse, who now describes abortion as a right “anchored in the Constitution,” called the notion of a constitutional right to abortion “fantastic, illusory” and noted: “The Constitution is searched in vain for any mention of it.” Former Justice Ginsburg criticized Roe for short-circuiting legislative efforts to address abortion issues. Dobbs essentially returned these issues to democratic processes.

Unsurprisingly, the critics never manage to explain exactly what about the Court or its decisions they find “illegitimate.” This is because they know full well that their claims of illegitimacy are nothing but hyperbole. What’s really eating at them is angst over a profound but perfectly legitimate shift in the jurisprudence of the current Court majority versus the majorities that prevailed for so long.

Most Justices during the Warren Court era carrying over into the Burger Court years, Republican and Democratic appointees alike, took a much more free-wheeling approach to constitutional (and statutory) interpretation than today’s majority. They produced decisions that aligned with their sense of contemporary societal needs and values but gave less attention to the supporting legal rationales. The Warren Court issued a series of precedents (including Roe) based not on the language or history of the Constitution but on “penumbras, formed by emanations” flowing from it.

By contrast, today’s majority employs interpretive methodologies such as “originalism” and “textualism” that focus on the language of the relevant constitutional (or statutory) provisions and how their meaning is best understood using historical background and well established principles governing the interpretation of legal text. These methodologies are not panaceas and leave plenty of room for disagreement in specific cases. However, they embody concepts that enhance analytic rigor, and if properly applied, impose some guardrails on subjective judicial discretion.

The majority and dissenting opinions in Dobbs illustrate these contrasting judicial approaches. The majority relies heavily on textual and historical analysis in concluding that the Constitution does not to contain a right to abortion. The dissent by the Court’s three “liberal” Justices takes a broader approach. It asserts that the framers of the Constitution “defined rights in general terms, to permit future evolution in their scope and meaning” thereby inviting the courts to “appl[y] them in new ways, responsive to new societal understandings and conditions.” Accordingly, the dissent puts great weight on the practical consequences and policy ramifications of overruling Roe.  

The fact that different Justices take such different approaches to judging does not mean that they are “illegitimate” or mere “politicians in robes.” Rather, both approaches reflect their adherents’ sincere views as to the appropriate role of judges. Cynical attacks on the legitimacy of the Court, its decisions, and even individual Justices (see here and here) serve only to breed more distrust in our institutions. Most Americans are not yet buying the false claim that the Court is illegitimate. However, the unrelenting attacks, magnified by media echo chambers, take their toll. Gallup reports that public confidence in the Court is declining, although the Court still earns considerably more trust than its critics in Congress and the media.

Those who oppose the direction of the Court should shift their frustrations from cynical, baseless rants over its legitimacy to more productive outlets. For one thing, they should look more to legislatures and rely less on the courts to advance their policy preferences.

They might also rethink their view of the Constitution as a malleable document whose meaning evolves to conform to new societal mores and values. This is a fraught time for such a viewpoint. Rights can contract as well as expand if redefined by reference to contemporary mores. Academics and increasingly others on the left are pushing back hard against traditional understandings of key constitutional rights—including freedom of speech, due process, and equal protection of the laws. Liberal judges may follow suit if they see this as an evolution justifying changes to the Constitution’s meaning.

The House Select Committee to Investigate the January 6 Attack on the United States Capitol (“Committee”) has completed the first phase of its hearings. What to make of it so far?

The Committee has an important mission and the potential to accomplish it

The January 6 attack on the Capitol was a national disgrace on many levels and must never be allowed to happen again. It is essential to understand as fully as possible how it happened, hold those responsible accountable, and develop countermeasures to prevent a recurrence. While much about January 6 is already painfully familiar, other aspects require more attention. The real possibility of similar attacks and even broader assaults on our electoral processes in the future is particularly concerning. One highly respected (and solidly conservative) former federal judge went so far as to assert that  January 6 was a dress rehearsal for future elections.

Therefore, it is wrong to view further inquiries into the events of January 6 as just a rehash of known facts and a distraction from more urgent issues facing the country. “Whataboutism” arguments that other riots such as those following the George Floyd murder do not face comparable scrutiny (e.g., here and here) are likewise unpersuasive. While the former may well deserve more attention than they receive, they do not pose a direct threat to our democracy. In any event, neglecting one set of riots hardly provides a rationale for neglecting another.

If it downplays politics, the Committee could accomplish a great deal. Given how its membership came about (see below), it lacks the adversarial makeup that turns most congressional inquiries on controversial subjects into chaotic circus-like events. The Committee also uses atypical procedures (e.g., a limited number of members participating in each hearing) that avoid the disjointed cacophony, grandstanding, and bloviating that characterize most congressional hearings. Aided by a seasoned TV professional, its highly choreographed hearings make effective use of video excerpts from depositions and other sources. The result of all this is a series of made for TV-type documentaries with well-developed themes that allow the Committee to get its message across through coherent narratives.

Complaints that the Committee is overly partisan or unfair are (thus far) unfounded

Naturally, Democrats hope to gain politically from the Committee’s work. However, it is utterly disingenuous for Republicans to write off the Committee as merely political. Democrats initially proposed to investigate the events of January 6 through an independent, bipartisan body along the lines of the 9/11 Commission. This would have been a better option but Senate Republicans blocked the proposal, leaving a congressional committee as the only alternative. Then, after political maneuvers by the leaders of both parties in the House, Republican Leader McCarthy refused to submit any nominees for membership on the Committee.

Republicans complain that Speaker Pelosi’s appointment of two GOP members, including Liz Chaney as vice chair, does not make the Committee bipartisan because they are Trump critics. However, Cheney is a solid conservative and former member of the House GOP leadership. She fails to qualify as a bona fide Republican only if the Republican Party is nothing more than the cult of Trump. (Sadly, this may still be the case.) Moreover, the Committee’s hearings have not been notably partisan so far. On the contrary, they rely heavily on Republicans, including many former Trump loyalists, to lay out a narrative of his direct knowledge and conduct that is objectively incontestable in large part. Of course, things may go downhill. Some of the Committee’s behind-the-scenes activities are politically suspect, and it may overreach provable facts and reasonable conclusions as it moves forward.  

Complaints that Trump has no one to defend him ring particularly hollow. As noted above, pro-Trump Republicans in Congress forfeited their opportunity to participate. Trump and his remaining loyalists refuse to engage with the Committee. Anyway, the case against Trump is so overwhelming that it’s unclear what could persuasively be offered on his behalf as long as the Committee sticks with provable facts and reasonable conclusions. Perhaps an insanity defense if one thinks Trump was delusional enough to actually believe what he said?

The Committee hearings confirm Trump’s reprehensible behavior, but will it matter?

If there was any lingering question concerning Trump’s unfitness for public office, the Committee has skillfully dispelled it mainly through the testimony of Republican witnesses. The hearings establish beyond reasonable doubt that Trump’s stolen election claims were patently false—indeed, wholly evidence free–and that this was repeatedly made known to him. The hearings also lay out Trump’s outrageous efforts to overturn the election result by, among other means, pressuring Vice President Pence to take unconstitutional action and urging state officials to alter their vote counts. And they document his irresponsible behavior directly related to the January 6 riot. Trump’s conduct in all these respects was clearly impeachable and would have justified his conviction and removal had he not already left office. Some of his actions may be criminal as well, although this remains to be seen.

Early polling suggests, however, that the Committee’s work may have little impact on public opinion. Evidently only about one third of Americans are paying attention, and among them opinions remain polarized. Polls consistently show that about 70 percent of Republican voters still believe Trump won the 2020 election. Nor does it appear that the hearings have affected Trump’s standing among Republican politicians, although some modest cracks may be developing. While surely knowing better, most still condone Trump either by their silence or (distressingly) by continuing to embrace his lies. As Rep. Cheney aptly observed, “to my Republican colleagues who are defending the indefensible: There will come a day when Donald Trump is gone, but your dishonor will remain.”   

Although Trump is the main villain of January 6, the Committee should avoid a myopic focus on him

The Committee’s singular focus on Trump, while understandable, probably is not its most fruitful line of inquiry. In typical Trump fashion, his reprehensible behavior before, during, and after January 6 was largely open and notorious. It has been the subject of extensive media coverage and his second impeachment. The Committee is doing an excellent job of pulling the known facts together and adding detail. However, it has offered nothing fundamentally new about his role, and what it has produced may be mainly preaching to the choir. (If the Committee had a “bombshell” revelation, it surely would have unveiled it in the initial prime time hearing.) Moreover, obsessing over Trump diverts attention from the following subjects on which the Committee could make a greater contribution and risks having many write off its work as political theater.

The Committee should explore the monumental intelligence and security failures that allowed a ragtag mob to take over the U.S. Capitol

Based on information now available, it appears that January 6 rioters were largely unorganized. Some committed violent acts when entering the Capitol and thereafter. Most, however, seemingly wandered the Capitol aimlessly, taking selfies, occasionally committing minor acts of theft or vandalism, and generally looking and acting more like jackasses than terrorists. While some moronically chanted “hang Mike Pence,” there was no serious attempt to attack him. (Had such an attack occurred, his heavily armed Secret Service detail surely would have dispatched it.) How a mob like this managed to successfully invade the United States Capitol, and with relative ease, is a scandal in itself.

While many individual police officers responded heroically, their leadership utterly failed to prepare for or effectively respond to the events of January 6. Explanations thus far by law enforcement and military agencies feature more obfuscation and finger pointing than enlightenment. While the profound law enforcement failures of January 6 have received some congressional attention, they deserve much more. This is a less politicized area and one where the Committee probably could contribute more than on the Trump-related issues. Of course, there are pitfalls here too. Congress is responsible for the Capitol Police and several other agencies involved in January 6; therefore, it might have trouble dealing with these issues objectively.

The Electoral Count Act needs the Committee’s attention

The many ambiguities in the Electoral Count Act of 1887 (ECA) create pitfalls for the integrity of presidential elections and have prompted calls across the political spectrum to revise it. (See, for example, here, here, and here.) Some contend that the law is unconstitutional and should be repealed outright. The ECA was one source for the specious argument that Vice President Pence could decide what electoral votes to count. The law also makes it very easy for members of Congress to challenge electoral votes by requiring only one Representative supported by one Senator. This has led to frivolous challenges to state electoral vote submissions from time to time, usually offered only as political posturing. (Ironically, January 6 Committee Chairman Thompson and Committee member Jamie Raskin have done this.) Taking things to an entirely new level, 147 unscrupulous GOP members of Congress—137 House members supported by eight Senators—objected to 2020 state electoral vote submissions based on Trump’s lies. Still another problem with the ECA is its vagueness concerning the appropriate grounds for a challenge.

The January 6 Committee lacks legislative jurisdiction over the ECA. However, it could and should explore the problems with the ECA relating to the 2020 election and develop recommendations to share with the congressional committees of jurisdiction. One complication to consider: The danger in 2020 (and prior years) was congressional abuse of the ECA in order to overturn legitimate electoral vote submissions by the states. The situation may be different 2024. Trump allies have been seeking greater influence in some states over how votes are tabulated. This introduces the possibility that there may be a need for the ECA or another federal mechanism to deal in the future with the reverse problem—illegitimate state submissions. 

Thankfully, Judge Ketanji Brown Jackson’s confirmation was relatively low key compared to recent Supreme Court confirmations. Except for the demagoguery and grandstanding of three of the Senate’s most noxious members (Hawley, Cruz, and Graham), it could almost be described as civil. Nonetheless, it ended with the usual outcome of late: an overwhelmingly partisan vote. No Republican senator supported Judge Jackson in committee and only three Republicans voted to confirm her.

Thus, the last best (albeit slim) chance to restore some minimal integrity to the Senate judicial confirmation process was lost. With a few striking exceptions (Bork, Thomas), Supreme Court confirmations were until recent decades generally bipartisan exercises focused largely on the merits of the nominees. The consensus standard was that presidential nominees were entitled to confirmation if they possessed the requisite substantive skills, their judicial philosophy was within the legal mainstream, and they were ethically and temperamentally fit. Under this standard, nominees as ideologically diverse as Justices Scalia and Ginsburg were confirmed by overwhelming bipartisan votes.

Clearly, Judge Jackson likewise would have received broad bipartisan support if this merit-based standard applied. Even many of her opponents conceded that she was well qualified substantively and personally. Thanks to the concerted efforts of both political parties, however, Senate judicial confirmations have steadily descended into hyper-partisan farce: politics is everything, the nominee’s merits are essentially irrelevant, and virtually nothing said by any senator is worth taking seriously. The last nominee to receive significant bipartisan support was Justice Kagan, who was confirmed by a vote of 63-37 in 2010.

Judge Jackson’s nomination offered at least a chance to reverse this trend. There was no persuasive basis to oppose her on the merits. (Objections to some of her sentencing decisions were exaggerated if not disingenuous; criticisms of her very few past opinions hardly amounted to grounds to oppose her.) No one questioned her personal integrity. There was no major process issue lurking in the background—e.g., Republican treatment of the Garland nomination, the timing of Justice Barrett’s nomination and confirmation. (Biden was criticized for limiting his choice to a Black woman but little was made of that at Judge Jackson’s confirmation.)

Most notably in the current climate, there was little at stake from a partisan/ideological perspective. Her confirmation presumably will result in replacing one “liberal” justice with another, while “conservatives” remain in control of the Court. Indeed, one astute pundit observed that politicizing the Jackson confirmation actually was a short-sighted and politically foolish thing for Republicans to do. But they apparently couldn’t help themselves; superficial politics as usual easily prevailed over substance and the public interest at the end of the day.

Many Republican senators who voted against Judge Jackson are probably hopeless partisans, as are many Democrats who reflexively oppose nominees of Republican presidents. What’s most disappointing, however, is that senators who sometimes appear to be at least a little open-minded and thoughtful ultimately went along with their crowd. This was true even for some (e.g., Portman and Toomy), who are leaving the Senate and have no reason to fear political retribution.

Another example is Ben Sasse, who is not leaving the Senate but often comes across as more than a craven partisan. His statement explaining his vote against Judge Jackson strained to have it both ways. He began by extolling her as an “extraordinary person” with “impeccable credentials and a deep knowledge of the law” and ended by wishing her the best as she takes her seat on the Court. In between, however, he complained that she did not sufficiently articulate her judicial philosophy and he criticized two of her decisions as a district court judge.

Sasse’s statement acknowledged that “the Supreme Court confirmation process is broken and doesn’t build trust in either the Senate or the Supreme Court.” Unfortunately, he declined to take one simple step to restore its credibility: embrace the former standard of basing confirmation decisions on merit. Specifically, he could have retained the opening and closing portions of his statement but revised the middle along the following lines:

“I am not confident that Judge Jackson will decide cases according to my preferred methodologies and I disagree with two of her past decisions. However, I do not question her personal and professional qualifications. While I would not have picked her, elections have consequences and she is certainly a reasonable choice by President Biden. Therefore, she has my vote.”   

If just a handful of senators in each party had the political will and concern for the public interest to take this simple step, they could do tremendous good. Sadly, they couldn’t muster the courage to do so in this instance and a better opportunity is unlikely to arise any time soon.  

The most recent attack on Justice Thomas and his wife, Ginni, has no more validity than the many similar attacks they have endured for decades. Leftist media and many Democrats refuse to apply to the Thomases the well-established standards applicable to all other married couples where one spouse is a judge. The professed outrage over text messages between Ginni Thomas and the Trump White House is just another example of relentless and spurious efforts to limit or discredit Justice Thomas’s service on the Supreme Court. As usual, it relies on hyperbole and misdirection rather than substance.

Disclosure of messages between Ginni Thomas, wife of Supreme Court Justice Clarence Thomas, and Mark Meadows, Donald Trump’s one-time chief of staff, generated a media frenzy that rivaled coverage of the Ukraine war. In the texts, which were exchanged shortly after the November 2020 election, Ms. Thomas urged Meadows to take aggressive action to challenge Trump’s defeat. As first reported by the Washington Post, the texts were voluntarily provided by Meadows to the House January 6 Committee and apparently leaked by the Committee to the Post.

Based on a series of distortions, the critics virtually accuse Ms. Thomas of treason. However, their real target is the Justice. They assert that the texts create a conflict of interest forcing him to recuse himself from participating in a wide range of cases that might come before the Supreme Court and cast doubt on his participation in at least one past case. Failure to accede to their demands, they claim, undermines the “legitimacy” of his service on the Court, and even the Court itself. Some critics call for him to resign or be impeached.

The consensus standard is that viewpoints and advocacy by a judge’s spouse are not imputed to the judge and do not constrain his or her judicial functions

The professed outrage over the texts is the latest installment in the longstanding campaign of leftist media and politicians to undermine Justice Thomas by attributing to him Ms. Thomas’s prominent activities in support of many conservative causes. However, the notion that judges are responsible for and limited by the political viewpoints of their spouses has long been discredited.  

Ironically, the leading illustration of the current standard comes from one of the critics’ own: liberal icon Stephen Reinhardt, former judge on the Federal Ninth Circuit Court of Appeals. One of the parties to a lawsuit challenging a California ballot initiative prohibiting same-sex marriage sought Judge Reinhardt’s recusal from the case because his wife, and longtime director of the Southern California ACLU, was a vigorous opponent of the initiative, as was her organization. Judge Reinhardt rejected the motion to recuse under the federal recusal statute (28 U.S.C. §455) and explained his reasoning in a memorandum.

Judge Reinhardt’s memo deserves to be quoted at some length and should be required reading for critics of the Thomases:

     “My wife’s views, public or private, as to any issue that may come before this court, constitutional or otherwise, are of no consequence. She is a strong, independent woman who has long fought for the principle, among others, that women should be evaluated on their own merits and not judged in any way by the deeds or position in life of their husbands (and vice versa). I share that view and, in my opinion, it reflects the status of the law generally, as well as the law of recusal, regardless of whether the spouse or the judge is the male or female. My position is the same in the specific case of the spouse whose views are expressed in the capacity of an officer, director, or manager of a public interest or advocacy organization that takes positions or supports legislation or litigation or other actions of local, state, or national importance.

“Proponents’ contention that I should recuse myself due to my wife’s opinions is based upon an outmoded conception of the relationship between spouses. When I joined this court in 1980 . . . the ethics rules promulgated by the Judicial Conference stated that judges should ensure that their wives not participate in politics. I wrote the ethics committee and suggested that this advice did not reflect the realities of modern marriage—that even if it were desirable for judges to control their wives, I did not know many judges who could actually do so (I further suggested that the Committee would do better to say ‘spouses’ than ‘wives’ . . .). The committee thanked me for my letter and sometime later changed the rule. That time has passed, and rightly so. In 2011, my wife and I share many fundamental interests by virtue of our marriage, but her views regarding issues of public significance are her own, and cannot be imputed to me, no matter how prominently she expresses them. It is her view, and I agree, that she has the right to perform her professional duties without regard to whatever my views may be, and that I should do the same without regard to hers. Because my wife is an independent woman, I cannot accept Proponents’ position that my impartiality might reasonably be questioned under § 455(a) because of her opinions or the views of the organization she heads.”

     “Nor can I accept the argument that my wife’s views constitute an ‘interest’ that could warrant my recusal under § 455(b)(5)(iii), as such a reading would require judges to recuse themselves whenever they know of a relative’s strongly held opinions, whether publicly expressed or not.”

He concluded with this key point, which has particular salience in the case of the Thomases:

     “It is indeed important that judges be and appear to be impartial. It is also important, however, that judges not recuse themselves unless required to do so, or it would be too easy for those who seek judges favorable to their case to disqualify those that they perceive to be unsympathetic merely by publicly questioning their impartiality.”

Recusal is uniquely fraught for Supreme Court justices. Unlike lower courts where another judge can substitute for one who recuses, a recused Justice cannot be replaced. Moreover, given the scope of Ms. Thomas’s political activism, attributing her causes to him would implicate many high-profile cases and potentially have major effects on the Court’s jurisprudence. (No doubt this is exactly what the critics want.)

Judge Reinhardt’s reasoning reflects the standard practice today. There are many examples of judges’ spouses engaging in political advocacy and activities (including holding elective office) or other public interest advocacy as individuals or through organizations such as the ACLU. Absent an obvious conflict of interest such as the spouse having a financial stake in a case before the judge, both spouses can work entirely independently. Indeed, this approach seems to be widely accepted and noncontroversial—unless your name is Thomas. In the latter case, all bets are off.    

Ms. Thomas’s text exchanges provide no grounds to depart from the standard practice

Going by current reports, nothing in the Thomas-Meadows texts provides a credible basis to depart from the usual standard. For starters, critics grossly distort the context in which the texts took place by attempting to connect them to the January 6 riot at the Capitol. Contrary to the impression conveyed by many critics, the texts hardly touch on the events of January 6. All but one of them took place well before then, in the early weeks following the election when the White House was formulating litigation strategies to test its stolen election claims. While these claims seemed dubious to many of us from the outset, litigating them was legitimate. The one and only text from January actually condemns the attack on the Capitol. Thus, Senator Klobuchar’s accusation that Ms. Thomas was “advocating for an insurrection” and Speaker Pelosi’s description of her as “an admitted and proud contributor to a coup of our country” are patently false. In fact, there is no evidence that Ms. Thomas had any involvement whatever in the riot.

The critics also grasp at straws to embellish Ms. Thomas’s role regarding the texts. One cited ethics lawyer, Stephen Gillers, acknowledged that a justice and spouse can pursue their interests in autonomous spheres, and therefore, he could “tolerate a great deal of Ginni’s political activism.” However, Gillers asserted that she “crossed a line” here. How? According to Gillers, by encouraging legal challenges to the election and making suggestions she became “part of the team seeking to overturn the election.” This is a huge stretch. There is no indication that she had any official status or authority, performed tasks, participated in strategy sessions, or provided any input beyond her often colorful exhortations. In short, she was not a team member in any conceivable sense. As one pundit put it, this would be like saying that an avid sports fan who yells encouragement to her team from the stands and shouts out plays for them to run thereby becomes part of the team.

Other ethics experts nebulously claim Ms. Thomas has an “interest that could be substantially affected” by election-related litigation for purposes of 28 U.S.C. § 455 requiring her husband’s recusal. However, as the Reinhardt example shows, the statute’s reference to an “interest” in a case surely means something more tangible than a personal viewpoint, no matter how strongly held or expressed. The experts do not specify what it might be in the case of Ms. Thomas.

Many critics emphasize that Justice Thomas was the sole dissenter when the Supreme Court refused to prevent the National Archives from providing documents, including texts to or from Meadows, to the January 6 Committee. However, the texts involving Ms. Thomas were not part of that case; Meadows had turned them over earlier. In any event, there is no indication that Justice Thomas even knew of the texts between Meadows and his wife.

Finally, many of the critics base their case on pure conjecture. They seize on a mention Ms. Thomas made in one text to a conversation she had with her “best friend” and speculate from this that she had some sort of substantive discussion with Justice Thomas about the election claims. They also speculate that there may be more texts. If so, their significance, if any, could be evaluated—hopefully more honestly than the existing batch.

Don’t expect this controversy to go away

While the critics cannot squeeze a plausible conflict of interest case from the facts reported so far, they are sure to keep fishing. Reportedly, the January 6 Committee is under pressure to call Ms. Thomas as a witness. Since there is not a scintilla of evidence that she had any involvement in the events of January 6 (other than appearing briefly as a spectator at Trump’s rally), this would be nothing but a political stunt and a distraction from the Committee’s real work.

(Personal disclosure: I know Ginni Thomas, having worked with her years ago on nonpolitical government management issues when she was a congressional staffer. While I don’t share her views on the 2020 election or her enthusiasm for Trump, I consider her a friend. I’m also confident that, whatever one thinks of her politics, she is more genuine than most of her critics.) 

The Dobbs case now before the Supreme Court, which challenges Roe v. Wade and related precedents, presents complex and difficult issues. Yet many abortion proponents insist that retaining these current precedents in full is the only legally plausible and valid outcome. Any decision adverse to Roe, they maintain, would amount to a “political” act by an “illegitimate” Court. Nonsense. There are principled grounds for concluding that Roe was (and is) seriously wrong as a matter of constitutional law and that it is not entitled to stare decisis deference. From this perspective, abortion opponents could just as well argue that adhering to Roe would be a political outcome implicating the Court’s legitimacy—as many surely will if the decision goes against them. Everyone would be better served if the abortion war combatants eschewed the demagoguery and stuck to honest, substantive arguments on the merits. Hopefully, the justices will do the same in their decision.

Current public discourse is poisoned by our inability to subject major societal issues to good faith, civil debate. Instead, we regularly split into polarized factions that largely demonize and talk past each other, preferring hyperbole and name-calling to rational, substantive debate. Dobbs v. Jackson Women’s Health Organization is the latest example.

It has become almost routine for politicians, the media, and academics (particularly on the left) to maintain that any politically charged Supreme Court decision that rejects their preferred outcome is not just wrong but cause to question the “legitimacy” of the Court. This approach carries over to attacks on individual justices; many on the left regard one or more Trump appointees as “illegitimate.” Alarmingly, several justices are picking up on these themes. During the oral argument in Dobbs, the three liberal-leaning justices suggested that a decision adverse to Roe and Planned Parenthood v. Casey would be perceived as nothing more than a political act enabled by their recently-appointed colleagues. Justice Sotomayor was the most extreme, asserting that such a decision would create a “stench” on the Court that it could not survive.

Reasonable (and unreasonable) minds differ strenuously on where the Court should come out on Dobbs. However, it is absurd to contend that a decision retrenching the Court’s current abortion jurisprudence could only be an “illegitimate” political exercise.

For one thing, Roe rests on a precarious legal foundation. It was decided at a time when the Court was much more freewheeling than it is now in adjudicating constitutional law cases. The difference between a majority of today’s justices and those who decided Roe and Casey is not political; rather it reflects fundamentally different approaches to judging.  Opponents of Roe have long maintained that the right to abortion it found was created from whole cloth and lacked any firm grounding in the Constitution. They consider the decision not just erroneous but egregiously flawed as a matter of constitutional law. It’s likely that all six of the Court’s conservative-leaning justices sincerely hold this view. Even many proponents of abortion rights recognize Roe’s weakness from a strictly legal viewpoint. Indeed, a fractured bare majority of the Court had to substantially rework Roe to save it in the 1992 Casey decision. Notably, neither advocates nor justices offered much in defense of the substantive merits of Roe during the Dobbs oral argument. Instead, its supporters leaned heavily on stare decisis.

But Roe is not necessarily a strong candidate for stare decisis treatment. The doctrine of stare decisis embodies the sensible notion that courts should generally adhere to their own precedents in order to promote stability and predictability in the law. However, it imposes no hard and fast rules. The doctrine applies most readily to decisions that may be legally dubious but have become widely accepted over the years. For example, many decisions from the Warren Court era dealing with criminal procedure were highly controversial when issued but are now thoroughly ingrained into law enforcement practice. By contrast, Roe remains as fiercely controversial and divisive today as it was in 1973, both legally and in the eyes of the public. It has been subject to repeated legal challenges and judicial refinement. Public opinion regarding abortion has moved very little over the years and remains sharply divided.

One reason for the continual churn in abortion jurisprudence and the persistent divisiveness in public sentiment–as well as another impediment to applying stare decisis–is that abortion presents a mix of complex and nuanced legal, medical, scientific, religious, moral, ethical, and philosophical issues that do not easily lend themselves to definitive judicial resolution. Attempts by the justices in Roe and subsequent decisions to treat abortion as exclusively a legal issue subject to bright-line judicial solutions have been largely unsuccessful. What they have done is fuel political attacks on the Court and its credibility.

It is the height of arrogance for either side to claim that it possesses the only objective truth concerning the host of issues abortion poses and that any contrary viewpoints are not only wrong but unworthy of serious consideration. Nevertheless, it’s probably inevitable that the losing side in Dobbs will indeed challenge the “legitimacy” of the decision and the Court itself, claiming that the decision is based on politics not law. Since the Court will be damned either way, the best course for the justices is to focus exclusively on the legal merits and not obsess over how its decision will be received.

Recent attacks on the integrity and legitimacy of Supreme Court justices undermine the ability of the judiciary to function effectively. In addition to being dangerous, such attacks are disingenuous and wrong. Splits among the justices reflect contrasting judicial philosophies rather than politics. Criticism that the justices are “political hacks” is agenda-driven demagoguery designed to achieve judicial outcomes more to the liking of the critics. At its core, the critics’ real message is that it’s fine for the justices to be partisan hacks as long as they are our kind of partisan hacks.     

Accusations that Supreme Court justices are politicians in robes masquerading as objective interpreters of the law have intensified recently. Among the many critics, one pundit went so far as to assert that the justices are “partisan hacks.” Another warned that the Court faces a “crisis of legitimacy.” Some critics point to a recent Gallup poll that showed decreased public confidence in the Court.

What to make of these accusations? 

For starters, it’s clear the critics are motivated by political agendas rather than genuine concern for the well-being of the judiciary. Almost all the current attacks come from the political left. So-called “conservative” justices now dominate the Court. Liberal critics see this as a threat to many priorities they have achieved or seek to achieve through litigation, including the ultimate prize, Roe v. Wade. In response, they want to restructure the Court through court-packing or other means in order to shift its ideological balance to the left. These initiatives would destroy the Court’s independence and are probably too radical to enact. At a minimum, however, the critics seek to intimidate the justices and influence their rulings through such efforts and even more direct threats. (See here and here.)

Concerns that political polarization is undermining public confidence in the Court are overblown. This year’s Gallup poll shows a decline to 49 percent in public “approval” of the Supreme Court. However, polling results ebb and flow considerably from year to year, likely driven primarily by reactions to a few headline-grabbing decisions. (Last year the Court’s public approval stood at 59 percent.) The latest polling numbers probably also reflect general declining public trust in American institutions. Notably, the Supreme Court still ranks much higher in public esteem than its critics in Congress and the media. In any event, unlike the political branches, the Court is not (and should not be) engaged in popularity contests. Its decisions are supposed to align with the law rather than public opinion.

The differences between Republican-appointed “conservative” justices and Democratic-appointed “liberals” stem mainly from contrasting judicial philosophies, not politics. The critics are right that Republican-appointed justices and Democratic appointees vote differently in many cases, although the differences are exaggerated. The critics are wrong, however, in attributing these differences to politics.

Statistics from the Supreme Court’s most recent term show only ten “polarized” decisions in which all Republican appointees were on one side and all Democratic appointees on the other. In fact, no two justices disagree more than half the time. Nevertheless, voting patterns do show significant splits. The votes of the three Democratic appointees aligned 88 to 93 percent of the time. Likewise, the six Republican appointees agreed most of the time although there was more variation among them. If politics does not explain these voting patterns, what does?

The answer is contrasting approaches to judging. There are distinct judicial philosophies and methodologies that divide so-called “conservative” judges from their so-called “liberal” colleagues. At the risk of considerable oversimplification, conservative judges usually favor “originalism” and “textualism” in interpreting the Constitution and federal statutes. These methods focus on the language of the law and attempt to adhere closely to its generally understood meaning. Originalists are reluctant to “find” new constitutional rights that are not mentioned in its text. At his confirmation hearing, Chief Justice Roberts famously compared the role of a judge to that of an umpire whose limited function is not to make the rules but rather to ensure that everyone plays by them.

Liberal judges, on the other hand, tend to prefer more free-wheeling approaches, sometimes referred to as “purposivism” and  “living constitutionalism,” that consider a wide range of external factors in interpreting statutes and the Constitution. They are more likely to view the Constitution’s meaning as evolving to adapt to contemporary values and mores. In this regard, former President Obama expressed his preference for judges “who understan[d] that justice isn’t about some abstract legal theory or footnote in a casebook” but is “also about how our laws affect the daily realities of people’s lives.”       

The Court’s recent (preliminary) decision in Whole Woman’s Health v. Jackson, which declined to stop a bizarre Texas antiabortion law from taking effect, is a prime target of the Court’s critics and a good illustration of these contrasting judicial approaches. The Texas law prohibits abortions that are constitutionally protected under current Supreme Court precedent (and it will no doubt eventually be declared unconstitutional unless the precedent changes). However, for various technical reasons it was designed to forestall judicial review until someone actually performed a prohibited abortion. In the meantime, the law has a chilling effect on women seeking abortions to which they are now constitutionally entitled.

Five conservative justices concluded that the Court lacked a legal basis to block the law’s enforcement at a preliminary stage since none of the named defendants had acted under it or planned to do so. Their conclusion is quite supportable legally; the Court has no authority to declare a law unconstitutional in the absence of a real case or controversy. But it leaves in effect, temporarily, an unconstitutional law that has immediate impact. This was too much for the three liberal justices, who strongly dissented. Apparently sharing the New York Time’s contempt for the majority’s reliance on “bloodless legal technicalities,” they were determined to somehow prevent Texas from getting away with its attempted evasion of judicial review. (Chief Justice Roberts hedged, conceding that the arguments against judicial intervention at this stage “may be correct” but still siding with the dissenters.) 

The merits of conservative versus liberal judging are vigorously debated in concept and as applied to specific cases. However, both approaches are within the mainstream of contemporary legal thought and neither necessarily leads to conservative/Republican or liberal/Democratic political results. (See here for an example of a politically liberal outcome flowing from an originalist analysis.) Indeed, Republican-appointed justices provided the decisive votes rejecting three challenges to Obamacare and achieving a major victory for LGBTQ rights. Additionally, Republican-appointed justices as well as many Republican-appointed lower court judges consistently rejected Donald Trump’s various legal challenges to his 2020 election loss. These are hardly outcomes one would expect from political operatives disguised as jurists

While the justices are not political partisans, those appointing them are and they do the justices a grave disservice. Presidents who nominate federal jurists and senators who confirm them have definite preferences in terms of judicial philosophies. Republicans favor conservative “strict constructionists” who aspire to apply the law as written and leave lawmaking to the elected representatives of the people. Democrats favor judges who take a broader approach and more readily apply their own sense of justice. While the political system once accommodated the contrasting judicial approaches fairly well, it has now run completely off the rails.

Presidents of both parties have long nominated justices whose ideology aligned with their political preferences. The Senate traditionally afforded presidents considerable deference regarding their nominees. It usually confirmed nominees on a bipartisan basis regardless of their ideology as long as they were considered to be within the legal mainstream and qualified intellectually and ethically. It was considered inappropriate to apply “litmus tests” to judicial nominees concerning how they would vote in specific cases.  Under this regime, the Senate overwhelmingly confirmed justices as ideologically disparate as Ginsburg (96-3) and Scalia (98-0).

Times have changed dramatically, and not for the better. Over the past few decades both political parties thoroughly and shamelessly politicized the appointment process. While most Republicans and Democrats still pay lip service to the ideal of an independent and nonpartisan federal judiciary, both are equally guilty of reducing the appointment process to a hyper-partisan farce in which litmus tests, demagoguery, and personal attacks abound and the substantive qualifications of the nominees are essentially irrelevant. This is particularly true of Supreme Court nominees.   

In this environment, it is easy to fall for the notion that justices are mere political pawns since politicians in both parties act as if this were the reality. Politicians on the left and their allies are now taking things to a new (low) level with their court-packing and similar schemes. No doubt politicians on the right and their allies would do the same if liberal justices dominated the Court.

All of this constitutes a dangerous and even existential threat to the Court. The ability of the judiciary to carry out its constitutional functions depends on public confidence that judges are unbiased and independent of the political branches. Doubts about judicial independence and objectivity are particularly worrisome as the judiciary has been forced in recent decades to assume an outsized role in our national affairs far beyond that contemplated by the framers of the Constitution. Ironically, this is due largely to the failure of the political branches to fulfill their constitutional responsibilities. Congress has largely abdicated its legislative functions and presidents frequently exceed their executive authority in filling the void left by Congress.

The best and perhaps only hope at this point is to restore some semblance of bipartisanship to judicial appointments and confirmations before politicians succeed in robbing the judiciary of its credibility. Sadly, it’s hard to see this happening as our politics descend further into the hyper-partisan, polarized abyss.     

A (rare) thoughtful piece on this polarizing subject: A Better Way to Flight Critical Race Theory. The author maintains that while CRT should not be used to indoctrinate students, it is wrong to ban teaching about it. Students should be exposed to CRT, like other controversial concepts, in order to subject it to scrutiny and analysis and allow them to draw their own conclusions. His take: “As someone who has spent decades working in the communities that CRT advocates claim to care about, in my view it offers no solution to unsafe neighborhoods, failing schools, or rising crime and homicide rates. Instead, it offers a cocktail of victimhood and hopelessness that never has nor will fix the inequities it claims to address, while lining the pockets of professors and consultants who push it in our institutions. Properly educated students will be able to see this for themselves.”

The Supreme Court recently upheld the legality of two Arizona voting rules that opponents charged violated the Voting Rights Act. This result is no surprise; the case against the rules was weak on the facts and law. Challenges to voting rules enacted by Georgia (and perhaps other States) should fare no better since their rules are likewise a far cry from the “voter-suppression”/”Jim Crow” measures portrayed by critics. In any event, these new rules figure to have little if any practical effect on voter turnout. Those concerned over election processes would do better to focus on how votes are counted rather than how they are cast.  

In Brnovich v. Democratic National Committee, decided last week, the Supreme Court rejected challenges to two Arizona election law rules brought under section 2 of the federal Voting Rights Act (VRA). This 6-3 decision unleashed predictable liberal outrage. Democratic politicians, including President Biden, as well as left-leaning media outlets, pundits, and law professors accused the Court of further gutting the VRA and abetting racist voter suppression. Justice Kagan wrote a fiery dissent much to the same effect. A look at what Brnovich actually involves, however, refutes these accusations.

Section 2 of the VRA prohibits States from imposing voting requirements in a way that results in denying or abridging the right of any citizen to vote on account of race or color. It provides that a violation is established if “based on the totality of circumstances” voting processes are not “equally open” to minority voters. One of the Arizona rules challenged in Brnovich disqualified the votes of individuals who cast their ballots in the wrong voting precinct. The other banned (with certain exceptions) the practice sometimes called “ballot harvesting” whereby third persons collect ballots from voters and submit them to election officials.  

Regarding the first rule, the evidence in Brnovich showed that the vast majority of Arizona voters across all racial and ethnic categories (over 98%) cast their ballots in the right precinct. Among the few who did not, there was a disparity of one-half of one percent between minority and non-minority voters. The Court concluded that since the system worked for almost all voters and resulted in only a small racial disparity among a small number of out-of-precinct voters, it was not unequally open in violation of the VRA. The Court also described various steps Arizona took to inform voters of their correct precinct and noted that Arizona law did not even require voting by specific precinct. Rather, voters had the option of voting early by mail or, in some counties, voting in person at voting centers that were not tied to individual precincts.

Regarding the second rule, the challengers offered no direct evidence that the ban on third-person ballot collection had any disparate impact on minority voters. There was anecdotal evidence that minority voters had used third-person collection more than non-minorities in the past—particularly Native American voters with limited access to mailboxes. However, this appeared to be more a matter of convenience than necessity. The Court also observed that exceptions to the third-person collection ban existed for a voter’s family members, household members, and caregivers. Additionally, Arizona permitted 27 days of no-excuses voting by mail in advance of elections. Finally, the Court found ample evidence to support the finding by the federal district court judge, after conducting a 10-day trial, that the third-person collection ban was not enacted with a racially discriminatory intent. The Court recognized that the ban served important public interests in discouraging fraud as well as pressure and intimidation of voters.

Justice Kagan’s lengthy dissent in Brnovich covered many topics but strained to explain how the Arizona rules could rise to the level of VRA violations. They are facially non-discriminatory and she did not contend that they were enacted with discriminatory intent; they serve legitimate interests in promoting the integrity of elections; and any racial disparities they cause are modest or speculative. The majority opinion observes that if provisions like these run afoul of the VRA, so could just about any State voting rule.

Even voting rights activists recognized the weakness of the challenge to the Arizona rules. One described the rules as “relatively tame” and noted that some advocates were unhappy that the DNC pursued this case aggressively. Notably, the Biden Justice Department submitted a letter informing the Supreme Court that it “[did] not disagree with the conclusion” that neither rule violated the VRA. (President Biden’s condemnation of Brnovich is thus at odds with his own lawyers.)

Brnovich will have a major impact on challenges to voting rules recently enacted by other States such as Georgia. The Court sensibly observed that any act of voting necessarily imposes some burden on voters and that mere inconvenience cannot be enough to violate the VRA. It noted that most State voting rules in place at the time the VRA was enacted required voters to appear in person on a single election day at a designated polling place; voting by mail was allowed only in limited circumstances. The Court expressed doubt that in enacting the VRA, “Congress intended to uproot facially neutral time, place, and manner regulations that have a long pedigree or are in widespread use in the United States.”

Most States that have recently amended their election laws, including Arizona and Georgia, still have voting regimes that are more liberal than those widely used when the VRA was enacted. For the most part, their recent changes tighten up voter-friendly flexibilities put in place after the VRA instead of imposing novel restrictions on voting.

Brnovich also debunked the rote contention by critics that State efforts to prevent fraud and enhance the integrity of elections are essentially unjustifiable absent proof of existing widespread fraud. The Court affirmed that preventing fraud is a “strong and entirely legitimate state interest” and added the common-sense observation that “it should go without saying that a State may take action to prevent election fraud without waiting for it to occur and be detected within its own borders.”

The Justice Department’s challenge to recently enacted Georgia voting rule changes is a prime example of a lawsuit that was problematic before Brnovich and is now almost sure to fail. Like Arizona, the voting rule changes made by Georgia are generally unremarkable and similar to those of many States. Bizarrely, the Justice Department rushed to file this lawsuit just days before the Brnovich decision, which it knew was imminent, probably anticipating its outcome.

In addition to stretching the VRA, challengers to recently enacted State election laws who focus on voting rules are barking up the wrong tree. Studies suggest that changes to voting rules (unless truly draconian) have little if any effect on voter turnout. Citizens who are motivated to vote will continue to do so, adapting to the changes and accepting any added inconvenience. Conversely, inconvenience is not a major reason why chronic non-voters fail to show up at the polls; the main reasons are cynicism and apathy. (See here and here.) A more legitimate potential concern than how votes are cast is how they are counted. Several States have made election law changes that could subject vote-tabulation processes to greater political influence. Those who sincerely care about ensuring that our democracy works would do better to train their sights on this aspect of the new laws.