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Monday, February 22, 2021

Briefly Noted: The SCOTUS Confirms Its Abdication

As I'm sure everyone is aware, the SCOTUS declined to take up the Pennsylvania election cases, on a 6-3 vote. The lead dissent was written by Justice Thomas, with Alito and Gorsuch also dissenting. As Thomas put it (quote borrowed from Red State):


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 [by the SCOTUS] to do so is inexplicable…

Not only did parties on both sides agree that the issue warranted certiorari, but there also was no question that petitioners faced irreparable harm. (“‘[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury’”). Petitioners further established a fair prospect of certiorari and reversal. For more than a century, this Court has recognized that the Constitution “operat[es] as a limitation upon the State in respect of any attempt to circumscribe the legislative power” to regulate federal electionsBecause the Federal Constitution, not state constitutions, gives state legislatures authority to regulate federal elections, petitioners presented a strong argument that the Pennsylvania Supreme Court’s decision violated the [Federal] Constitution by overriding “the clearly expressed intent of the legislature.”


To my mind this decision simply confirms what was apparent from the refusal to the SCOTUS to take up the Texas election lawsuit that was joined by numerous other states. As I stated at the time, this marks the definitive abdication of the SCOTUS from playing its full constitutional role as a co-equal branch of the government. These cases--so clearly of fundamental importance for our constitutional order as a republic--were very obviously declined on political grounds, and likely out of fear. I fail to see now how the SCOTUS can ever regain its former prestige. One can argue that the abdication took place at some earlier point in history, but to me this decision, by confirming the previous abdication, makes it official and irrevocable. I see no point in discussing it further.

ADDENDUM:




29 comments:

  1. Suffice it to say we have the worst “elites” - and yes I’m including the time of the fiddling Nero here - potentially in human history across the board: be it the judiciary, elected officials, media, entertainment, edu, etc: cucks, cowards, sell-outs, phonies, & perverts abound.

    We inhabit a kakistocracy.

    Ladies & Gentlemen, may I humbly suggest placing your faith in The Lord Jesus Christ rather than men? The latter will always let you down - the former never - & it’s later than you think.

    Boarwild

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  2. They were the best that could be passed with the eGOP senate...

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  3. Kavanaugh and Barrett - two more Roberts clones. Gorsuch has pleasantly surprised me. I thought he’d be the washout.

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    1. Does Kavanaugh not remember what the Stalinists did to him? Does he somehow believe they won't do it again?

      Really. Does he somehow believe they won't do it again?

      Barrett? Scalia must be turning in his grave.

      OTH, Thomas' dissent says it all. He is a giant.

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    2. For a guy who's supposed to be concerned for the institution of the SCOTUS--remember, that was pretty much his rationale re Obamacare, too--one wonders what Roberts and his two acolytes could possibly be thinking.

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    3. I'm having a very hard time wrapping my brain around the majority's dismissal without a word of explanation. Especially in light of the many important questions raised by Thomas (and Alito and Gorsuch). As others are saying, tens of millions of Americans believe the election was stolen. Cases have been presented to the Supreme Court raising unanswered constitutional questions and the majority dismisses them as...moot? Thomas addresses this question but Roberts et al. say nothing? Nothing?

      Yes, one wonders what Roberts and his two acolytes could possibly be thinking.

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    4. "Gorsuch has pleasantly surprised me. I thought he’d be the washout."

      He's done quite enough legal, societal, and cultural damage for his lifetime appointment with his asinine Bostock v. Clayton County majority opinion. That alone will roil the entire court system for decades--if the country lasts that long. It seems time to start replacing lawyer judges with people with demonstrable common sense. Again: assuming that the country can survive its current descent into totalitarianism.

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  4. it's amazing what can be accomplished when your enemy is demoralized, sigh. I can't believe in less than a month we "lost" President Trump, Lou Dobbs, & Rush...and now this spineless act of cowardice by SCOTUS. Damn it, we can't let the bastards know we're down, but it's getting harder to stay motivated. Methinks Mr. Trump's CPAC appearance may give us something to rally around, but hey, what do I know?

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  5. And then there’s Merrick Garland, who might well have ended up on the Court:

    Merrick Garland May Hide Durham Report From Public

    President Joe Biden’s attorney general nominee, former federal Judge Merrick Garland, refused a pledge before lawmakers Monday to refrain from interfering with the Justice Department probe into the origins of the Russia hoax run by special counsel John Durham. When questioned by GOP senators, Garland said he wouldn’t commit to releasing the Durham report.

    https://thefederalist.com/2021/02/22/merrick-garland-may-hide-durham-report-from-public/

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    1. Remarkable that you can rise so high in a profession where integrity is supposed to matter, yet have no self respect. But then there's our own people, too.

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    2. Meh, didja think Barr would do any different?

      Well, I did at one not long ago which seems decades ago.

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    3. It's still disillusioning to come to the realization of how bereft the conservative side is of men of real integrity.

      Delete
    4. Biden AG Nominee Downplays Portland Riots, Compares Capitol Riot to OKC Bombing

      https://trendingpolitics.com/biden-ag-nominee-downplays-portland-riots-compares-capitol-riot-to-okc-bombing-knab/

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    5. The continuing adventures with Garland, the IHOP King. Or “I tell them nuh-thing” Sgt. Schultz?:

      AG Nominee Garland Waffles on Whether Illegal Border Crossing Should Remain a Crime

      https://www.theepochtimes.com/ag-nominee-garland-waffles-on-whether-illegal-border-crossing-should-remain-a-crime_3707599.html?

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  6. Hell, with the way this court is going we'd have been better off with Avenotti and the blonde Kavanaugh ditz on the court. Would there be a difference in the latest rulings we've witnessed? I think not...

    DJL

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  7. Guess court packing will be off the agenda for the next 4 years. I mean why bother.

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  8. If we no longer have a legitimate court-- we will descend into rival tribes, and wind up making the laws by who wins in the streets.

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  9. That SCOTUS decided not to hear the election cases deprives at least 75 million voters of their right to hear the case; to know that justice was served.

    mso

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  10. Apparently Coney Barrett was lying when she said the legislatures make the laws and the Courts apply them. What a coward.

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  11. It is now official. The election was stolen. Move on. Nothing to see here. If you need any more proof that this election will not stand up to scrutiny...

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  12. Conservatives and the states who claim to be so need to get it in gear. I still question what type of pain it's going to take to get people to move their butts.

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    1. I suspect there will be nothing, until suddenly there's a realization among people, and then there'll be something.

      Frank

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  13. Don't look for any great shake-ups among the solidly red states. They'll keep on doing what they do, the feds will probably do the same. If things get bothersome then expect some, or a lot, of nullification w/o a big fracas. SOCTUS has made itself irrelevant. That's my take for what it's worth.

    0311

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  14. The Supreme Court is concerned that possibly, maybe and if you go through the records with a fine tooth comb there could be illegalities in DJT's financial transactions (Fourth Ammendment be damned) but changes of rules, suspicious early morning ballot drops, lack of supervision of the counts, machines that were demonstrably capable of being hacked in ten minutes remotely and statistical impossibilities in something as unimportant as an election for the leader of the free world do not merit our attention.
    SCOTUS no longer merits our respect.

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  15. A "streetwise Professor" wrote (10 days ago)
    "Time Magazine... published a piece that admitted–in a triumphalist way–that there was indeed a “conspiracy” involving a “cabal”, to affect the outcome of the 2020 presidential election....

    ... these changes *fast-tracked the most fundamental* change to voting processes in the US ever adopted–a wholesale shift to mail in voting, which is inherently more vulnerable to manipulation and fraud.
    In addition, the entities involved undertook a concerted campaign to disseminate “information” (aka propaganda), primarily via social media, to validate their efforts....

    The effort was so extensive and so well-funded that it was almost certainly decisive in determining the election outcome.
    That outcome being so close in decisive states, such massive efforts to change voting procedures, and reshape the information environment, certainly changed the results....

    My dismal conclusion: government has grown so powerful, and the stakes in elections are consequently so massive, that the republic’s institutions are effectively powerless against oligarchic, corporatist, and indeed objectively fascist forces, hell bent on controlling those institutions–and on controlling you."

    From https://streetwiseprofessor.com/democracy-fortified-with-essential-vitamins-and-minerals-eat-it-mom-says-its-good-for-you/ .

    He (Craig Pirrong, at Bauer College of Business, University of Houston) describes himself as "expert in legal cases involving commodities and derivatives."

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  16. President Nixon was not involved in the Watergate break-in. Having won a landslide election he thought it was his prerogative to sweep the matter under the carpet. He was mistaken. There are Judges and other entities who were not involved in the theft of the 2020 election, yet feel it is their prerogative, even their duty, to cover the matter up so as to avoid unpleasantness. They are mistaken. Now three-quarters of the Country are convinced the election was stolen, or at least there were major irregularities associated with it. That there was a massive co-ordinated cover-up is undeniable. No Court or State Legislature seems interested in proving the allegations false, and the media and social media are in total denial. When three-quarters of the citizens of a Country have doubts as to the legitimacy of a government and its institutions, it is a formula for disaster. Donald J. Trump was powerful before. Now he represents three-quarters of the Country. Keep on persecuting him. It will get worse.

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  17. Curious to see what becomes of Powell and Wood, I don't think the court could have taken in all of the cases, if it had, I think it stood the possible outcome of inadvertently over ruling an election 9 - 12 months after the fact.

    I'm not suggesting they could or would give any relief as such, but could you imagine 3-4 cases winning that would add up to enough electors to have changed the outcome?

    I'm also reminding myself that the history of the SCOTUS we had MUCH worse decisions.

    We should see election integrity bills flying in about 20 state houses. I'm betting on bills to further bury observers, limit or remove accountability, early ballot destruction, further burying software / data inspection, etc. We can't have a repeat of 2020.

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  18. Justice Thomas has exemplified the high road here - but bear in mind there is no confusion around the lack of commitment to the constitution.

    SC decimated any potential with Texas, and closed the door on the way out with Pennsylvania.

    At this point can an individual bring suit against the remaining justices for failing to perform?

    Can anyone say term limits?

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