SCOTUS refuses to hear the Pennsylvania cases that challenge the constitutionality of the voting changes
Once again, this is no surprise:
The Supreme Court has refused to accept a case challenging the Pennsylvania election result, on the basis that the mail-in ballot procedures were illegal, as “moot”.
In other words: what difference, after all, does it make?
From Justice Thomas’ dissent:
The Constitution gives to each state legislature authority to determine the “Manner” of federal elections. Art. I, §4, cl. 1; Art. II, §1, cl. 2. Yet both before and after the 2020 election, nonlegislative officials in various States took it upon themselves to set the rules instead. As a result, we received an unusually high number of petitions and emergency applications contesting those changes. The petitions here present a clear example. The Pennsylvania Legislature established an unambiguous deadline for receiving mail-in ballots: 8 p.m. on election day. Dissatisfied, the Pennsylvania Supreme Court extended that deadline by three days. The court also ordered officials to count ballots received by the new deadline even if there was no evidence—such as a postmark—that the ballots were mailed by election day. That decision to rewrite the rules seems to have affected too few ballots to change the outcome of any federal election. But that may not be the case in the future. These cases provide us with an ideal opportunity to address just what authority nonlegislative officials have to set election rules, and to do so well before the next election cycle. The refusal to do so is inexplicable.
One wonders what this Court waits for. We failed to settle this dispute before the election, and thus provide clear rules. Now we again fail to provide clear rules for future elections. The decision to leave election law hidden beneath a shroud of doubt is baffling. By doing nothing, we invite further confusion and erosion of voter confidence. Our fellow citizens deserve better and expect more of us. I respectfully dissent.
I suspect that Justice Thomas doesn’t actually find the decision inexplicable. He may find it inexplicable in the legal sense, but I very much doubt he’s unaware of the other factors motivating the justices on the other side (who include Kavanaugh, Roberts, and Barrett). You might call it cowardice, and I think that’s part of it. But judges and lawyers are very good at finding justification for whatever they want to do, and I believe their justification is that the election really is over and it’s easier to say the question no longer needs to be settled. Why wade into that minefield?
Roberts is a good equivocator, and often tries to avoid changing the status quo. I believe that it’s highly possible that Kavanaugh and Barrett, courageous though they both were during their confirmations, were traumatized by them. Now that they’ve reached the seemingly safe harbor of SCOTUS, why make waves by taking a case they don’t need to take, and arouse the wrath of the left? After all, they know how destructive and intimidating that rage can be.
I also believe that this psychological intimidation is part of the reason the left puts nominees on the right through such a metaphoric baptism of fire. Whether or not it works to stop these judges from confirmation, the left is aware that it can work to frighten those they target – perhaps on a level so subtle that the justices themselves are not aware of it – and cause them to be subsequently reluctant to tangle with the left if they can find an excuse to avoid it.
That’s one of the things that is so admirable about Clarence Thomas. He has never been intimidated, and he is one of the justices who went through one of the worst confirmation processes ever.
Justice Alito joined Thomas’ dissent and wrote this:
…[T]he cases now before us are not moot. There is a “reasonable expectation” that the parties will face the same question in the future, see Wisconsin Right to Life, Inc., 551 U. S., at 463, and that the question will evade future pre-election review, just as it did in these cases. These cases call out for review,
They may call out, but their cries are not heard.
Even before this election, when I saw all the changes in the election rules and realized how dangerous they were, I didn’t think there would be a legal remedy. That has turned out to be the case. The only solution is prevention. That has been difficult, and if HR1 passes (which I wrote about here), prevention may be – to coin a phrase – moot.
Thomas, unlike Trump’s justices, is indeed unafraid; why the others are so timid and so disappointing to those who supported them is less clear, although the unwillingness to be ostracized from “polite society” in DC and, in the case, of ACB, fear for the possible consequences to her large family from the vicious wrath of the vengeful left may well be in operation (concerning the truly wretched Roberts, rumors, mostly, in all probability, not true, abound online). As for the illegitimate as well as frighteningly dreadful HR1, likelier than not to pass, the end of any possibility for a free and fair election in our moribund republic may be imminent.
one of the things that is so admirable about Clarence Thomas. He has never been intimidated
What doesn’t break you, may leave you stronger.
The “capable of repetition, yet evading review” exception to the mootness doctrine was first laid down by the United States (US) Supreme Court in the 1911 case of Southern Pacific Terminal Co. v. Interstate Commerce Commission. (219 U.S. 498, 1911). This does seem a shining example.
This may be a redundant observation: Not only does the refusal mean there will be no SCOTUS decision, it also means the arguments will not be laid out in their entirety, with answers to objections. So the public will not see the real thing.
Laches moot standing. Its a precedent or pretzel. Who needs to go to the trouble of packing when you have Johnny Boy Roberts at your beck and call? Brett and Amy will have a long time to rue this day.
Gorsuch also dissented, joining Alito.
Apply that logic to murder trials. Can’t make the victim not dead, so…
Kavanaugh, Roberts, and Barrett, tragic examples of Edmund Burke’s dictum: “The only thing necessary for the triumph of evil is for good men to do nothing”
They accepted the honor of sitting upon their country’s highest court and then conducted themselves with dishonor.
Their moral cowardice demonstrates that they were indeed unfit for the honor bestowed upon them.
Ah the irony, it turns out that the left had nothing of substance to fear from them. Controversy is all that is needed for them to retreat from their duty.
HR 1 will pass. It is the Reichstag, and the US will become, as it rapidly is becoming, a democratic socialist party with perpetual rule ( a word I do not use lightly) by Democrats.
As j.e. says.
om: Brett and Amy rue nothing. They are meek, moral and intellectual cowards. They surely did not respond at their Senate hearings the same way Clarence Thomas did, calling the process a “high tech lynching”. God bless the man.
My view is that unlike Thomas, who became stronger after going through the fire cast by Sen.Biden in his role of chief inquisitor, Kavanaugh and Barrett seem to have internalized that they must, to save their families, bow down to the Left, forever.
@GB:
Until things go kinetic there is no downside to defecting to the Left on any occasion.
You may say that doing so involves a loss of Honor. Honor departed Western Civ on a boat with the Elves some time back.
Honor will be back. But hard times first.
For now, it’s a question of who do these Justices fear more. None of us wish to get droned, so will not develop this further.
The older I get, the more I admire the intestinal fortitude of the founding fathers; it seems that only Thomas, Alito and , perhaps, Gorsuch have the right to say they walk in those ancestral footsteps.
A fascinating article which pertains to this is in American Greatness. I think it speaks to Kavanaugh’s and Barret’s apparent appearance as conservative poseurs.
The link:
https://amgreatness.com/2021/02/16/the-second-set-of-books
We are moving much more rapidly than I anticipated toward–‘what?. Sadly, I started from a pessimistic mood on 11/4.
It is up to a few states now. They must stand firm; and them must stand together. It will be hard.
(I am now 85 years old. I keep telling myself that it shouldn’t matter to me. After all the people in later generations who I care about voted for this mess, and are seemingly ok with the Social Justice madness that underlays much of it. But, it does matter. I find myself praying more than I used to, and every prayer includes a plea that God will be merciful to this country, but will do whatever is necessary to change the direction. About all I can do at this point.)
Geoffrey Britain: “it turns out that the left had nothing of substance to fear from them. Controversy is all that is needed for them to retreat from their duty.”
Too true. And their corrupt Marxist Media will ensure there is wild controversy where ever, when ever, needed.
Zaphod: “Until things go kinetic there is no downside to defecting to the Left on any occasion.” Making my case.
When the Revolution or the old Civil War were living memories, no one in authority was so cavalier about the Rule of Law.
Their fears are in their heads, angst put there by mad men. Imagined threats, not the real, True, hard ones the Patriot must deliver.
@T:
Thank you for the “Second Set of Books” link!
It nails part of the problem. I always say that we’re like the blind (or at least very myopic) men trying to describe the Elephant. Except that our elephant is actually Leviathan.
This article goes in the bookmark list along with Codevilla’s essays which also help Limn Leviathan.
Won’t change many minds I’m sure, but I like to keep essays like this to refer people to. It’s far better than trying to explain things myself; I just tend to foam at the mouth and start spouting Runes 😀
One take home is that we’re in a Class War. Many of us are running blind because we instinctively associate the term with the hackneyed old Cowboys and Indians / Good Guys us vs. Bad Guys Communists narratives and immediately tune out because ‘ancient boring history’.
Big Mistake.
Oligarchies and Managerialist Bugmen / Nomenklatura / Clerisies are eternal.
So are us Peasants.
OODA Loop: I’ve just Observed and Oriented. Exercise for Reader is what comes next.
Oldflyer:
I am with you: “and deliver us from evil”, in the Lord’s prayer, taught in His Sermon on the Mount so very long ago.
He spoke to Jews and Gentiles.
But there was more justice then under the laws of the Roman republic than under our present Democratic socialists.
Aristotle’s Nichomachean Ethics writings on justice were only ~350 years old then.
My best friend from high school became a lawyer. He worked hard for that degree, he was on Law Review and he made it to a top LA firm. He had respect for the Law.
During the 80s he became a conservative, but he still had respect for the Law. When I said something cynical about the Law from my leftist viewpoint, he would say, no, judges wouldn’t do that, even given their political bent.
His respect became somewhat strained through the 90s and 00s, but it was still there. In particular he assured me of Roberts’ brilliant legal mind and principles.
Then came the Roberts’ Obamacare ruling. My friend had no answer to that whatsoever. It broke his respect and to some extent my friend himself.
“Mene mene tekel upharsin” is written on a wall of the Capitol somewhere.
Thanks to T and Zaphod for making me notice T’s post.
Tucker Carlson just had Naomi Wolf on as a guest tonight. She’s been a second wave or nth wave feminist, but is perhaps becoming a political changer. If I have this correct, and I may not; she wrote a book about the 10 steps towards an authoritarian police state. She believes that we are at Step 10 now. I think she is more concerned about our government’s COVID response than she is about other topics we discuss here.
Wow…That’s interesting! Cold day in Hell when I start having good vibes about Naomi Wolf. But I am. Very provisionally, mind you.
@Cicero:
Belshazzar’s Feast:
https://youtu.be/dLIJWE1RoEk?t=1404
huxley,
I’m sorry that your friend suffered. The law is an ephemeral thing, I suppose; in the end, might does make right in human realms, though the might need not be expressed solely in terms of physical coercion – moral force is also a factor. But at the same time, the law is a highly fragile thing, upheld by moral authority. At this moment, I feel greater pain for your friend who has suffered and might still be suffering than for ‘the law’ as such, because in a sense, he is a victim of the moral failings of others. But to bear the consequences of others’ weaknesses without complaint is a high calling.
I hope that your friend can let go of his investment in the law of man and lay hold of the higher law that may yet be vindicated. (Yes, I’m saying this out of a combination of Brahms and whiskey, which is not as dangerous as some mixtures. I’ve been afflicted, for example, with a Satie earworm all day, but I think that to listen to the Gymnopédies right now would be too much – it does strike me that that’s the kind of music that’s really dangerous. Brahms is a bit like that, but not as much, fortunately. I’ve been listening to his late piano music lately and it’s really quite something.)
I am extremely disappointed, and naively surprised that SCOTUS has once again failed the constitution.
I was going to note that the Progressives have demonstrated their hand– when BLM and Antifa can commit mayhem with impunity, then the targeted violence against any conservative that dares to go against them is now the norm.
We were gleefully nominating young jurists, thinking how smart we were. They would be around for decades to protect the constitution from the most egress assault by the left.
But it turns out they are the most susceptible to the intimidation and threats that have or will come against them. Do I blame them? Not really. But we are seeing a new dynamic in play, and we can no longer assume that these people are our last line of defense.
Should someone have seen this coming? One of conservatives great failings is our belief that Americans will act honorably.
Small example. When the medical bureaucracy was willing to sacrifice an unknown number of lives by banning the use of HCQ/zinc since it ran counter to the rules of the bureaucrats.
There are other cases left to consider. Will they all be cast aside, now that, at this point, what difference does it make?
I just read the post by T, and yes, it seems, the second set of books is now in full view.
“Mene mene tekel upharsin” is written on a wall of the Capitol somewhere.
Cicero: My bet is is on:
_________________________________________
Ph’nglui mglw’nafh Cthulhu R’lyeh wgah’nagl fhtagn.
Trans: “In his house at R’lyeh, dead Cthulhu waits dreaming.”
_________________________________________
Which is from H.P. Lovecraft, of course, about a dread alien, god-like, monster, Cthulhu, hibernating and waiting to be reanimated to assert dominion over humanity. His worshippers perform the R’lyeh chant for the return of Cthulhu.
As good an explanation as any for what’s going on in DC.
Philip Sells:
Thank you for your concern for my friend. He’s retired and has largely given up. He told me, “The Republic is lost,” years ago.
He’s a serious Christian and finds the Benedict Option attractive.
huxley – I hope your friend is finding peace after his great disappointment.
I would quote the usual lines from Man For All Seasons, on cutting down the Law, but all of us know them by heart.
Not so often referenced is his great closing oration after being found guilty of defying Parliament, based on Richard Rich’s perjured testimony.
We all know that the vendetta against Trump and his supporters is because they refuse to accept what is increasingly obvious: the election was run fraudulently in more than just the “swing” cities that have garnered the most attention.
Gateway Pundit is even indicting Colorado now.
“Nevertheless, it is not for the
SupremacyTweets that you have sought my blood, but because I would not bend to themarriageElection!”Oldflyer – another sad but true line from the same speech: “I do none harm. I say none harm. I think none harm. And if this be not enough to keep a man alive, then in good faith, I long not to live.”
I wish More’s story had come to a happier ending.
I pray with you that our Republic’s tale will fare better.
Zaphod – this one’s especially for you.
https://libertyunyielding.com/2020/11/27/think-inside-the-ooda-loop-we-are-the-great-reset/
by J. E. Dyer
“…banning the use of HCQ/zinc since it ran counter to the rules of the bureaucrats.”
Rather” “because it ran counter to the rules of the power-hungry Leftist ideologues in the Democratic Party who were more than willing to sacrifice lives and implement chaos and societal breakdown as the path to gaining power and utterly defeating their political enemies.”
AesopFan:
Most annoying part is that Richard Rich and Thomas Wriothesley both died very wealthy and in their beds.
Thanks for the link. Very Glass Half Full, but will consider. At least I hope we can all be part of the ginormous great spanner in the works. Be a shame if the Bugmen won. Humanity doesn’t deserve much; but we’re not that undeserving.
Maybe trying to hold off the inevitable excuse for court packing. Not an excuse but an explanation for the inexplicable decision.
The evil (and grotesque shamelessness) continues apace….
“Biden: We can’t accept such a cruel fate:
President Joe Biden holds a memorial at the White House for the 500,000 Americans who lost their lives to coronavirus.”
https://www.israelnationalnews.com/News/News.aspx/297310
https://www.theepochtimes.com/white-house-holds-moment-of-silence-as-covid-19-deaths-surpass-500000_3707125.html
(Though at this point, I think that “POTUS” can only be referred to as “Biden”….)
It’s also possible that the Associate Justices are concerned about Dem plans to pack the court. Being one of nine has more prestige than being one of 13 or 15.
Remember Ashli Babbitt!
Whichever way the case might have ended, SCOTUS would have been responsible for, in effect, letting the cat out of the bag. Even if things had gone the dems’ way by virtue of lack of virtue in the court, they’d have committed the SIN of letting people know what the issue was.
Considering how active Mayor Bowser was when in receipt of information about Jan 6, the prospect of the cops protecting your home from a screaming mob–with lots of previews from the summer–was likely not comforting. Perhaps ACB and others rationalized their views by saying….I’ll be strong next time.
I think its safe to say that Roberts’ gamble in not taking the PA case in August has blown up in his face. Failing to resolve this issue before the election fed a lack of confidence in the election. Failing to resolve it now feeds a lack of confidence in the Court.
Alito and Gorsuch’s statement of the case was pretty ominous anyway, though. By using an “unconstitutional as applied during COVID” rule, the PA Supreme Court basically held that the PA Constitution gives it the last word on election policy, not the legislature. Alito and Gorsuch stated the issue, however, as whether the US Constitution is violated when a state court finds that a state constitutional provision overrides a state election statute governing a federal election. That’s a much narrower and more anodyne issue.
Can a state court find that a state election statute violates a state constitution? Of course it can. Can a state court decide that a state constitutional provision allows it to second guess the legislature on election procedure if the court views the circumstances differently? Probably not.
That Gorsuch and Alito stated the case in a way that looks more like the former than the latter makes me wonder if there actually were five votes to reverse the PA Supreme Court. Maybe Kavanaugh or Barrett were voting to prevent bad precedent.
Another consideration is that ambiguity here might actually be the least bad option. If the Court took the case and provided an opinion clearly delineating the limits of what of what state courts and local officials can do, it could very well end up serving as a “how to” manual, giving state courts and officials the right “magic words” that will allow them to do the same thing in the future while evading review.
Take away: There is no substitute for winning elections (including judicial elections in Pennsylvania).
Bauxite,
With regard to your comment at 9:10 am above, this is why in my post (@6:54 pm yesterday) I noted “Kavanaugh’s and Barret’s apparent appearance as conservative poseurs.” They may be, or perhaps there are deeper judicial principals at work here that I do not comprehend. We shall see in there future decisions how conservative they really are or whether either of them is simply another Janus-faced John Roberts.
Bauxite. Roberts’ gamble blew up in somebody’s face. Why do you pick Roberts? Could be that’s the best thing that could have happened to him. Nobody who counts is angry with him and anything that happens to inconvenience the dems won’t be his fault
Short version: There is NO WAY for either SCOTUS or a State Supreme Court to prevent election fraud, if a state legislature and a state AG and a state AG want to steal an election. (Pennsylvania in particular has some screwy laws on the books regarding time limitations for appealing laws that are unconstitutional.)
Which is what happened in those four swing states (and perhaps others as well).
In other words a Perfect Storm of fraud and criminality, of subversion and larceny.
Tailor-made by our moral and ethical (not to mention cultural) superiors….
AKA the “Cabal”….
(The latest contribution to the welfare of the country from the people who brought us “Russia-Gate”….)
Could be worse(?) we could have Merrick Garland on the SCOTUS. Now there is a towering inferno of judicial brilliance (domestic terrorism at the Portland Federal Courthouse versus the US Capitol being defined by business hours or the hours of daylight). But until Merrick Garland is seated on the SCOTUS (pack in more hacks in black) the country will have to lean on Johnny Boy Roberts. (sarc)
Barry Meislin:
That’s not what happened in PA. In PA the legislature passed more restrictive voting laws and the state high court made them less restrictive, at the behest of the Democrats. The constitution of the state only gave the power to set voting rules to the legislature, and the court overrode that.
Here’s the way it went down in PA.
Alito did not join Thomas’ dissent. He did write a separate one, which Gorsuch joined.
Cicero,
I pray you are wrong but fear you are right.
Zaphod,
Thanks for that youtube link. I was not aware of the performance, or even the work itself! Or even William Walton!!
I don’t recall it coming up here at neo’s, and barely heard mention of it anywhere, but Roberts did refuse to adjudicate Trump’s second impeachment hearing. That was a bold stance. There is no other interpretation than this meant he believed it was not Constitutional. It obviously didn’t stop Schumer et al from holding the thing fraudulently, but give Roberts credit for taking a hard stance on a very controversial subject in a very high profile proceeding. It certainly could have been a huge issue in the media and public discourse. Roberts had no way of knowing how it would be received, but followed the Constitution regardless.
Neo, thanks for the correction.
But if it’s the State Supreme Court that’s shafting the legislature (and therefore the citizenry) and—I would venture to say—knowingly (i.e., intentionally) preparing the ground for successful (and legal!) electoral fraud then we’re dealing with something every bit as sinister and evil (if not more so) than my mistaken belief… Especially since it cannot be countered or appealed successfully.
(Of course, the MO of the Obamian Left (with Sorosian overtones and unlimited bucks)—we’re doing this only to HELP the voter(!) AND promote democracy—is all over this stinking pile.)
“For democracy” (State of Georgia edition):
https://spectator.org/georgia-runoffs-voter-intimidation/?utm_source=LibertyNation