Kavanaugh discourages conservatives by dodging pro-Trump electoral processes

Justice Brett KavanaughBrett Michael KavanaughMedia circulates wagons for conspiracy theorist Neera Tanden The January 6 case to end Senate Tribe Laurence obstruction: Judge Thomas is out of service in the 2020 elections MORE Conservatives dismayed this week when he took what appears to be the decisive vote preventing the Supreme Court from opening pro-Trump electoral processes.

Kavanaugh’s apparent break with the court’s three staunchest conservatives – the judges Clarence ThomasClarence ThomasLaurence Tribe: Judge Thomas is out of order in the 2020 Supreme Court elections will not analyze Pennsylvania Republican Party electoral processes A powerful tool for facing the Supreme Court – if Democrats use it correctly MORE, Samuel AlitoSamuel AlitoLaurence Tribe: Judge Thomas is out of order in the 2020 elections Supreme Court will not analyze Pennsylvania Republican Party electoral processes A powerful tool to face the Supreme Court – if Democrats use it correctly MORE and Neil GorsuchNeil GorsuchThe January 6 case to end Senate obstruction Laurence Tribe: Judge Thomas is out of order in the 2020 election McConnell supports Garland as attorney general MORE – seemed to take his colleagues by surprise and provoked the ire of some of the political right who saw the action as an act of treason.

Thomas, in a dissent, said he was “confused” by the court’s reluctance to accept disputes, as four judges – including Kavanaugh – signaled in late October his opinion that pro-Trump opponents were likely to win on appeal.

“Someone wonders what this Court expects. We failed to resolve this dispute before the election and thus provide clear rules, ”wrote Thomas in what some analysts saw as a veiled coup against Kavanaugh. “Now, again, we do not provide clear rules for future elections. The decision to leave the electoral law hidden under a blanket of doubts is baffling. “

Alito and Gorsuch wrote dissidents separate from the court’s denial on Monday, but made it clear that they agreed with Thomas. Dissenting judges indicated that the disputes would not have disrupted the outcome of the 2020 presidential election.

As is typical practice, the judges did not give the public a complete picture of how they voted on the petitions, or their reasoning. But the disagreements of Thomas, Alito and Gorsuch strongly suggested that Kavanaugh lost his appetite to get involved in the election-related disputes.

In that case, Kavanaugh’s vote this week marked a reversal of his previous position. In the run-up to the November election, he joined Thomas, Alito and Gorsuch alongside the Pennsylvania Republicans in their emergency attempt to reverse the accommodations of voters that Trump claimed were illegal.

Anthony Sanders of the libertarian Institute for Justice, a litigation firm, said the conservative judges’ disagreements seemed to target Kavanaugh’s apparent turnaround.

“Thomas, Alito and Gorsuch seem very ‘confused’ and ‘perplexed’ in Kavanaugh Justice today,” wrote Sanders on Twitter. “He voted with them to accept a case about the scope of the ‘legislative clause’ last fall, but strangely it is absent in granting the cert in the case of Pennsylvania.”

The Wall Street Journal editorial board also called Kavanaugh directly in an article criticizing the court for failing to end what he described as “electoral anarchy”.

“[W]where did Judge Brett Kavanaugh depart, since he was the fourth vote in October? ”The editorial board wrote.

In their petition, Pennsylvania Republicans argued that the US Constitution gives state lawmakers exclusive authority over elections in Keystone State. If this view were adopted by the judges, it would mean that pandemic-era accommodations, such as increased postal voting, which were put in place by the Secretary of State, would be unconstitutional.

Kavanaugh, in October, seemed sympathetic to this argument. After the death of Justice Ruth Bader GinsburgRuth Bader GinsburgMcConnell supports Garland for attorney general A powerful tool to face the Supreme Court – if Democrats use it right Fauci says he was nervous about catching COVID-19 at Trump’s White House MORE, Kavanaugh joined the three conservative supporters of the court by siding with the Pennsylvania Republican Party to prevent new voting rules. The court’s 4-4 tie left the accommodations intact during the November 6 election.

Some see a connection between Kavanaugh’s change of opinion on Monday and the January 6 uprising on Capitol Hill, which was fueled by Trump’s electoral disinformation.

Julie Kelly, a fierce Trump supporter who describes herself as an “agitator,” accused Kavanaugh, a Trump nominee, of cowardice in the face of pressure from Democrats and the news media.

“We can only assume that once Kavanaugh changed his pre-election stance in Pennsylvania, threats to promote a ‘Big Lie’ about electoral fraud hit him,” Kelly wrote in the far-right American Greatness.

Rick Hasen, an expert in electoral law and a professor of law at the University of California at Irvine, offered two guesses to explain why the court avoided hearing the electoral processes. Either the judges lost interest in the disputes, since they are now debatable, he said, or the court stepped down because Trump’s cases are seen as “somewhat radioactive”.

“Given the previous President TrumpDonald TrumpNoem praises the response to the South Dakota coronavirus, breaks down blockades in CPAC On The Trail speech: Cuomo and Newsom – a story of two troubled governors McCarthy: ‘I would bet my house’ GOP resumes lower house in 2022 MOREContinuing the false claims that the election was stolen, the case would become another vehicle for arguing that the election results were illegitimate, ”wrote Hasen on the Electoral Law Blog. “This would put the Court back in the spotlight on an issue that the judges have repeatedly shown they wanted to avoid.”

After Trump’s electoral defeat, he and his allies amassed an abysmal record in court while trying to undermine President bidenJoe BidenNoem praises the response to the South Dakota coronavirus, breaks down blockages in the CPAC On The Trail speech: Cuomo and Newsom – a story of two governors in trouble Biden celebrates approval of the vaccine, but warns that ‘current improvement may reverse’ MOSTthe victory of through post-electoral processes. The Supreme Court has so far refused to accept about a dozen such cases.

In all, the court on Monday denied appeals from eight electoral lawsuits filed by Trump or his allies. Many of the lawsuits urged judges to clarify the gray legal area regarding which arm of the state government has the power to administer the elections.

However, the court has not fully released the post-election litigation agenda. Judges are scheduled to discuss a Trump challenge to Wisconsin’s postal vote policy on Friday and Kavanaugh may face further pressure to hear the case.