The first Monday in October means a new Supreme Court term, and this one started off with a doozy.
As battles rage over the independence of the judiciary and whether one political party has claimed partisan control of the third branch of government, the state of Delaware says it has a better idea.
For more than a century, the state has required its major courts be roughly balanced, so that no more than a bare majority of a court is made up of members of one political party. And then it required the minority be made up of the other political party.
The result, Stanford law professor Michael W. McConnell told the U.S. Supreme Court Monday, is that “Delaware’s courts are widely regarded as the least partisan and most professional in the nation.”
The problem, countered Wilmington, Del., lawyer David L. Finger, is that it is unconstitutional. The plan denies the chance for his client, lawyer James Adams, to serve on the courts because he is neither a Democrat nor Republican but a political independent, Finger said, and that violates his First Amendment rights of political association.
It seemed a fitting beginning for the Supreme Court’s new term, as the Senate is torn along partisan lines about whether to confirm just before the election President Trump’s nominee Judge Amy Coney Barrett to replace Justice Ruth Bader Ginsburg, who died Sept. 18.
Ginsburg’s death left the court with five conservative justices, all named by Republican presidents, and three liberals named by Democrats. Barrett’s confirmation would install a 6-to-3 majority for conservatives.
That reality was unspoken, as the justices again gathered by teleconference to begin their traditional first-Monday-in-October arguments. As a concession to their scattered whereabouts, the marshal omitted the command in the familiar “oyez, oyez” cry that listeners should “draw near” to hear the business of the court.
Chief Justice John G. Roberts Jr. began the session by noting that the door and Ginsburg’s spot in the empty courtroom are hung with black crepe.
“Justice Ginsburg’s contributions, as advocate, jurist and citizen, are immeasurable,” Roberts said before the session began. “We at the court will remember her as a dear friend and treasured colleague.”
The reality is that Justice Ginsburg is gone, and she will be replaced by Amy Coney Barrett, and the ripple effects of that will resonate for decades. The first case heard could decide whether or not judges can even be partisan candidates, or if they must be appointed by state legislatures, allowing gerrymandered Republican strongholds like Ohio, Florida, NC and Michigan to simply remake the courts, and on voting issues, state courts would rule.
For everything else voting-wise, Republicans have a plan for that too. Cases from Pennsylvania, South Carolina, and Wisconsin are already expected to get hearings from SCOTUS in a matter of weeks, and they could decide both states.
The Purcell principle, named for a dispute over an Arizona voter identification law taken to the court on an emergency basis in 2006, dictates that federal judges should generally refrain from causing confusion by changing voting rules in the lead-up to an election.
While the notion sounds simple enough, its application in practice can often be baffling. And just how to apply the idea of keeping election procedures stable in the midst of an extraordinary national health emergency like the coronavirus pandemic is far from clear.
“It’s being brought up in just about every case right now as we are getting closer to the election,” said University of California at Irvine law professor Rick Hasen, who coined the term “Purcell principle” in a 2016 law review article. “But it’s not a hard-and-fast-rule, and it’s not well developed.”
The jockeying over the principle is evident in the fight the justices are wrestling with right now — a Pennsylvania Supreme Court ruling last month that made some changes to the state’s usual voting procedures, including allowing absentee ballots postmarked by Election Day or lacking a postmark to be counted even if they don’t arrive until three days later.
Republicans have fought the changes by arguing that the state court usurped a role that the U.S. Constitution says can be played only by the state Legislature and that the Constitution also forbids allowing the receipt of ballots after Election Day. But GOP leaders of the Pennsylvania Senate have also cited the Purcell principle as a reason to reject the changes the state’s highest court ordered last month.
“Changing the rules in the middle of the game by informing voters that they now have until November 6 for their ballot to be received risks confusion and the potential for fraud,” Republican election lawyer Jason Torchinsky wrote in a brief filed last week for the state lawmakers.
Lawyers for Pennsylvania Secretary of State Kathy Boockvar, a Democrat, seem to embrace the Purcell principle even more aggressively. In a brief filed Monday afternoon, they devoted four pages to arguing that the notion is as much about federalism as it is about timing. The idea behind the concept, they say, is fundamentally that federal courts shouldn’t be monkeying at the last minute with state-run elections, not that states lack the power to manage that process.
“Applicants’ request for this court’s intervention now is precisely the eleventh-hour federal meddling that the Purcell principle counsels against,” Pennsylvania Attorney General Josh Shapiro wrote. “The senators appear to argue that this court should issue an order preventing those state courts from addressing Covid-19 related emergencies in their respective states. This is directly contrary to the Purcell principle.”
Legal experts say the Supreme Court could broaden the Purcell idea to cover last-minute state court orders, but it’s still unclear whether it would apply to changes sought or agreed to by the election authorities themselves. Also uncertain is whether a state court ruling issued six weeks before Election Day qualifies as the kind of disruptive, late-breaking order the judges in the Purcell case worried about.
“What is the cutoff time? How flexible is it? I think we don’t know what,” Hasen said.
The answer will be whatever SCOTUS and Justice Barrett decide.
Justice Clarence Thomas, joined by Justice Samuel Alito, lashed out on Monday at the religious liberty implications of the Supreme Court's 2015 decision that cleared the way for same-sex marriage nationwide.
Thomas wrote that the decision, Obergefell v. Hodges, "enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots, making their religious liberty concerns that much easier to dismiss."
Thomas' strong opinion came down on the first day of the court's new term, and reflects the fact that critics of the landmark opinion from five years ago that was penned by now retired Justice Anthony Kennedy, are still infuriated by its reasoning. They believe the court should have left the decision to the political arena and have long said that it will infringe upon the rights of those who have religious objections to same-sex marriage.
Supporters of LGBTQ rights are fearful that the court is poised to continue a trend from last term, ruling in favor of religious conservatives in key cases.
The case that prompted Thomas' statement concerned Kim Davis, a former county clerk in Kentucky who gained national attention in 2015 and was jailed after declining to issue marriage licenses out of an objection to same sex marriages. The high court on Monday declined to hear an appeal in her case.
Thomas called Davis "one of the first victims" of the court's "cavalier treatment of religion" in the Obergefell v. Hodges decision but warned "she will not be the last." He said that her case was not properly presented before the court, but he urged his colleagues to revisit the religious liberty implications of the landmark opinion down the road.
Thomas and Alito are begging for a case to overturn Obergefell and eliminate same-sex marriage, almost as eagerly as they are awaiting a chance to overturn Roe, and a host of other decisions could be history in the next several years.
You should be scared. If we don't win here, win now, and win overwhelmingly with a mandate to expand the court to eleven justices, we go back to 1950.
And a lot of us won't survive the trip.
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