Elena Kagan Takes Brett Kavanaugh To School With Public Rebuff


At present, the U.S. Supreme Court again has nine members. One of the last cases that the court dealt with before the late Monday confirmation of Trump pick Amy Coney Barrett to replace the late Ruth Bader Ginsburg involved mail-in ballots in Wisconsin. A lower court had upheld an extension of the deadline for receiving mail-in ballots to be counted in the state, but, in a 5-3 decision, the Supreme Court overturned that ruling and re-instituted the requirement for Wisconsin’s mail-in ballots to come in by Election Day in order to be counted. In the liberal Justices’ dissenting opinion, Justice Elena Kagan tore apart the opinion written by Trump pick Brett Kavanaugh.

Kavanaugh insisted that it’s legitimate for states to “want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election.” Donald Trump, who appointed Kavanaugh to the Court, has been one of the chief spreaders of these “suspicions of impropriety.” Just this week, he claimed that the U.S. “must have” its “final total” of votes in the presidential race by Election Night — but there is no legal requirement underpinning the president’s assertion. Election results aren’t ordinarily even officially certified until significant periods of time after Election Day. Rather, predictions and observations from experts and media organizations provide the unofficial but perceptibly conclusive perspective on the presidential race in the time before official results certifications.

In her dissenting opinion, Kagan wrote that there aren’t even any results to “flip” until all the votes are counted. In short, Kavanaugh’s support of getting election results as quickly as possible is arbitrary and could disenfranchise voters. She wrote:

‘Justice Kavanaugh alleges that ‘suspicions of impropriety’ will result if ‘absentee ballots flow in after election day and potentially flip the results of an election, but there are no results to ‘flip’ until all valid votes are counted. And nothing could be more ‘suspicio[us]’ or ‘improp[er]’ than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is to disserve the electoral process.’

Kagan also criticized another consequence of the Court’s decision: the fact that Wisconsin voters may now have to increasingly rely on in-person polling places, despite the documented health risks of in-person gathering places amidst the ongoing spread of the Coronavirus.

In Wisconsin, Coronavirus cases have been rising very sharply, and Kagan insisted that the ruling invalidating mail-in ballots that arrive after Election Day “will disenfranchise large numbers of responsible voters in the midst of hazardous pandemic conditions,” adding that “[as] the COVID pandemic rages, the Court has failed to adequately protect the Nation’s voters.”

Going forward, Trump’s newest pick Amy Coney Barrett may soon be faced with election-related cases, but there’s no tangible indication that she will recuse herself from them, no matter the fact that Trump has openly expressed his willingness to take the election results to court if he doesn’t like the outcome.