Tuesday, February 23, 2021

Yesterday Appeared to be a Bad Day for Trump and Trumpism at the Supreme Court: SCOTUS Kremlinology Part 3

by Michael C. Dorf

The big news out of the Supreme Court yesterday was the denial of the stay sought by Donald Trump in the NYC grand jury investigation into his finances and related matters. The ruling in its entirety stated: "The application for a stay presented to Justice Breyer and referred to the Court is denied." No dissents or reasons were recorded.

That's not especially unusual. The Supreme Court routinely takes summary actions without explanation. And despite understandable calls for greater transparency on the Court's so-called shadow docket, there is almost certainly some irreducible minimum of work that the Court--like any reasonably complex institution--can and should be permitted to do without giving reasons.

Indeed, we might worry about the opposite problem: In the four cases involving clashes between state public health measures and religious freedom claims since last spring, various Justices arguably said too much, and thereby changed the underlying law governing religious exceptions without full briefing and oral argument.

In any event, watching the Supreme Court is, as I have noted before (here and here) something of an exercise in attempted mind-reading or Kremlinology. For example, an article last week in USA Today quoted three scholars (including me) hypothesizing that the Court is taking a brief breather from hot-button issues in order for the new conservative supermajority to coalesce. The article is sensible, but as I wrote its author after it appeared:

all of the scholars you interviewed had the same basic reaction: seems like they’re going slowly for now/probably won’t last/we’re really just guessing at what’s going on. I might add . . . that there might not even be a there there. That is, we’re acting as though the Court has a plan and we’re trying to infer it as kremlinologists. But the Court is a "they," not an "it," so its/their actions are the vector sum of complex individual decisions that could be at cross purposes with each other.

With that gigantic caveat--that so much of what I say about the Supreme Court is really just guesswork--I'll venture a brief reaction to the financial records decision and a few observations about the Court's denial of cert in the cases from Pennsylvania challenging that state's supreme court's decisions regarding the 2020 presidential election.

Although we don't know what the exact vote or rationale for the Court's order in the Trump financial records case was, we can be pretty confident that the bottom line will be bad for Trump. To be sure, grand jury secrecy ensures that there will be no immediate disclosure of Trump's finances. Moreover, it is hard to imagine that there is anything in the records that would damage Trump politically. Trump once boasted that he could kill someone in plain sight and lose no support. He appears to have underestimated the loyalty of his followers. If we stick to homicides, Trump's insurrection killed five people. If we count deaths due to his indifference and incompetence, the Trump death toll is closer to five hundred thousand. And yet, he has not lost the support of the third of Americans who comprise his base. Accordingly, Trump's financial crimes seem extremely unlikely to register as anything other than "fake news" with those in his thrall. Nonetheless, Trump went to great lengths to block his financial records from ending up in the hands of Cyrus Vance. Perhaps he figures he can't count on even one loyalist to hang a Manhattan jury.

Yesterday's Pennsylvania election cases produced a bit more substance on which to chew. Readers will recall that the Keystone State's GOP-controlled state legislature made insufficient accommodations to the needs of voters who reasonably feared going to polling places. Accordingly, the Pennsylvania Supreme Court, relying on a state constitutional provision requiring that elections be "free and equal," ordered some extensions to ensure that voters who acted diligently to obtain and return mail-in ballots were not disenfranchised through a combination of overwhelming volume, Republican legislative unreasonableness, and postal delays. Trump and his allies complained that in so doing, the Pennsylvania Supreme Court violated the provision of Article II of the U.S. Constitution that gives to state legislatures responsibility for choosing the manner of selecting a state's presidential electors.

The independent-state-legislature theory on which Trump and his allies relied finds support in a three-justice concurrence in Bush v. Gore, but as Prof Buchanan, Prof Tribe, and I, as well as numerous others have argued on this blog and elsewhere, it's a very very bad theory. There is simply no good reason to think that when the US Constitution delegates to state legislatures the power to choose the manner of selecting electors, it does so independently of the state's established procedures for lawmaking. For an excellent short but thorough scholarly debunking of the independent-state-legislature theory, I refer readers to Dean Amar's recent paper. Unfortunately, the fact that the independent-state-legislature theory is lawless hasn't stopped what may well be a majority of the current Supreme Court from appealing to it.

Yesterday, three justices dissented from the denial of certiorari in the GOP cases challenging the Pennsylvania Supreme Court rulings in the 2020 Presidential elections. Justice Thomas, who is the only member of the Bush v. Gore majority still on the Court, wrote a long-ish dissent that pretty clearly signaled he adheres to the concurrence he co-authored (with Chief Justice Rehnquist and Justice Scalia) in that case.  Justice Alito, joined by Justice Gorsuch, wrote a shorter dissent that pre-judged the issues less than Thomas's dissent but expressed no disagreement with it. Thus the vote to deny cert was 6-3. (We know that no justice dissented without being so noted, because it takes only four votes to grant cert.) While that outcome might seem reassuring, there is reason to think that if the Court were to hear the merits of a case, five or six justices would rule in favor of the independent-state-legislature theory, thoroughly debunked though it is. The Trump/McConnell-packed Court would simply rebunk it.

I'll give credit to the dissenters where credit is due, however. Despite some dog-whistles about the risks of voter fraud, Justice Thomas does say clearly that Trump's argument would not have made a difference, even if it had been credited prior to the certification of the electoral votes, because Biden won by a substantial margin without counting any of the ballots received after the legislature's deadline but before the Pennsylvania Supreme Court's deadline. A Trump supporter who reads Justice Thomas's opinion--admittedly a rara avis--will find no support for any impact on the outcome, much less for massive voter fraud.

In addition, the dissenters are basically right about their central point, which concerns timing. If the Court is ever going to adjudicate the lawfulness of the independent-state-legislature theory, it makes more sense to do so after an election when nothing is directly at stake than in a future election contest in which the stakes might be very high. I find both the Thomas and Alito dissents persuasive that the case fits within the exception to mootness for questions that are capable of repetition yet evading review. That doesn't necessarily mean the majority was wrong to deny certiorari. But it does mean that matters of timing should have weighed in favor of granting cert.

What would have happened if the Court had taken the case and ruled that the Pennsylvania Supreme Court lacked the authority to extend the mail-in voting deadline? The exact partisan bent of such a ruling going forward is unclear. It's true that in the 2020 election, Democrats were much more likely to vote by mail than Republicans, who were much more likely to vote in-person. That alignment reflects a reversal of prior trends. In prior elections, Republicans were slightly more likely to vote by mail. Whether the new pattern persists remains to be seen. It might simply reflect views about COVID-19. Democrats take it more seriously than Republicans (on average), and so were more worried about the risk of contracting the virus by going to vote in person. That will not be an issue in 2024, one hopes!

However, some substantial portion of the reversal in attitudes towards voting by mail could persist. Republicans were not simply less drawn to mail-in voting in 2020 than Democrats were. Many Republicans were affirmatively pushed away from it by Trump's relentless campaign to discredit it. It's likely that some number of Republicans who, in an alternative universe, would have voted by mail in future elections, now won't, because their stable genius of a leader has instructed them to distrust mail-in voting.

My wholly unscientific guess is that over the long run there won't be much of a partisan divide over the use of mail-in voting but that the current partisan tilt will take at least a few election cycles to dissipate. Thus, had the Court granted cert and ruled the Pennsylvania Supreme Court's decision invalid under Article II, and had that resulted in the reversal of some future state court intervention widening access to mail-in voting, there would have been at least a modest advantage for Republicans.

Meanwhile, had the Court endorsed the independent-state-legislature theory in the Pennsylvania case, the result would have benefited Republicans more broadly. It is no secret that Republican state legislatures enact laws that have the goal of making voting difficult for people--especially for urban voters more likely to vote Democratic. State court rulings construing those laws or narrowing them in light of state constitutional provisions protecting voting rights undercut these Republican voter suppression efforts. A SCOTUS majority opinion endorsing the independent-state-legislature theory would have in turn undercut the undercutting, and hence would have facilitated Republican voter suppression efforts.

Thus, insofar as the cert denial prevented a decision that would have abetted voter suppression, it should be welcome. But not too welcome. The Thomas and Alito dissents and the tea leaves they read will have an in terrorem effect in any event. Assuming that gerrymandered state legislatures in Pennsylvania and other states don't succeed in neutering their state supreme courts through gerrymandering judicial appointments, state judges who otherwise would be inclined to protect voting rights will be gun-shy for fear of being reversed by a Supreme Court enamored of the independent-state-legislature hokum.

So Trump may have had a bad day at SCOTUS, but democracy didn't have an especially good one.


Joe said...

"will find no support for any impact on the outcome, much less for massive voter fraud"

Perhaps, if they took the whole thing with a reasoned eye, but Mark Joseph Stern's article at Slate suggesting another likely inference is fairly strong.

"makes more sense to do so after an election when nothing is directly at stake than in a future election contest in which the stakes might be very high"

It's a bit hard not to smile at their selective looser standing rules, but as far as it goes, there is logic to that. My pragmatic concern would be that this last election had so much baggage that taking a case even indirectly arising from it -- while the hard feelings are still in place -- would be problematic.

Anyway, Kavanaugh has already seemed open to the move the three lean toward. Roberts originally dissented on the definition of legislative power over independent commissions. And, Amy Coney Barrett's leanings in general are fairly apparent. So, I am very concerned about the future in this area.

egarber said...

So there are at least two other constitutional provisions where state legislatures are specified:

1. Forming new states by combination of existing ones

2. Amending the Constitution

So suppose in either case, a state’s legislature approves by one vote (Democrats are the majority party). But it turns out that by some state law, one of the reps wasn’t eligible to run (he lied about his age or something). The state Supreme Court rules his vote doesn’t count as a result. Democrats scream to the United States SCOTUS about the need for a novel theory to referee the intra-party dispute and respect the vote.

IMO, there is not a chance in this universe or in hell that conservative justices would even hear that complaint in earnest. “Balls and strikes” my ass. :)

egarber said...

What’s more is that those two provisions above read as legislatures deciding full bore, whereas the electors clause only speaks of legislatures “directing.” Directing isn’t necessarily deciding, if conservatives want to play a pedantics game.

Michael C. Dorf said...

Eric: Your example is pretty close to Coleman v. Miller.

Joe said...

The Seventeenth Amendment also references state legislatures.

egarber said...

Thanks Joe and Mike... They need a "like" option for comments. ha.

egarber said...

<<the need for a novel theory to referee the intra-party dispute and respect the vote.

Fork. I meant intra-state here.