My presentation in Is The CJ Roberts Plan Working? has received some vigorous pushback in the comments. I've also pushed back vigorously. What I'll do here is elaborate a bit on the issues involved and also paste in the comments below.
Here's the nub of what I wrote yesterday about the "Roberts Strategy"--an admittedly speculative notion:
Back at the beginning of March I wrote a post that examined an idea that Shipwreckedcrew had put forward. The basic idea was that, in declining to involve the SCOTUS in legal disputes over the 2020 presidential election Roberts was pursuing an actual strategy--not just abdicating the SCOTUS' responsibility to uphold the Constitution.
Let me elaborate on that idea just a bit, to give Roberts the benefit of the doubt. There's no question that the SCOTUS could have stepped in--the Texas case in which numerous additional states joined would have been, IMO, perfect. From that standpoint the reasons given by the SCOTUS for sidestepping the case were unconvincing and harmed the prestige of the court by calling its judicial integrity into question. After all, what constitutional issue could be more fundamental and more important than one that called into question our entire electoral process? I discussed this aspect in the earlier post: Arizona Election Law Case In SCOTUS.
On the other hand, while the SCOTUS--in contrast to the executive and legislative branches--is supposed to be above politics, it simply is no longer possible for the Court to disregard political considerations--if that ever was possible. That is all the more true in that politics in America have become utterly toxic from a constitutional standpoint. The country is sharply divided, with the current regime narrowly controlling both the White House and Congress impugning fundamental concepts of the American order. What is the SCOTUS to do--plunge forward, or ...
Encourage the state legislatures to act by exercising their constitutional authority to regulate elections? That would return elections to regulation by the political branches of state governments, where the US Constitution placed the authority in the first place. The idea is that the putative Roberts strategy would support state legislatures taking charge of their own affairs--rather than the SCOTUS arrogating that authority to itself. In future, then, the SCOTUS would largely butt out of election law cases--the effect being to neuter much of the electoral lawfare we currently see in the federal courts. Voters at the state level would be able to express their views on their own states' election laws and their own courts at the ballot box. That HOPEFULLY is the significance of the SCOTUS--having previously declined to get involved in more sweeping election cases--now taking on a much more pointed case involving the swing state of Arizona.
That is not an argument for ignoring election law. What it is is an argument for accepting cases on a very narrow basis--when state law on its face violates some constitutional principle, not based on speculative concepts of disparate impact, such as we're seeing more and more. Those issues were not raised in the TX case that the SCOTUS sidestepped, but they are very much front and center in the AZ case--from a Dem electoral strategy standpoint the AZ case is a potential dagger pointed at the heart of their strategy.
As you'll see when you get to the comments pasted in below, I make the argument that it wasn't the SCOTUS' responsibility to save the GOP. Because let's face it--Trump did what he could to win reelection. The election was sabotaged not just by the Dems but by the GOP. We've seen that in state after state, during the post election squabbling. We're at the point now that the GOPers who sabotaged Trump--governors, legislators, AGs, SecStates--are now scrambling to fix their standing with the voters. Because they now realize that their strategy failed. They thought voters would be duped by the fraud, and accept a false loss by Trump. Instead, voters realize that the fix was in.
The justices at the SCOTUS aren't entirely stupid, nor are they entirely without political views. Some, especially Roberts himself, may have desired a Trump loss. That's as may be. The question is, was it the responsibility of the SCOTUS to rescue officials in GOP run states who failed live up to their own responsibilities? Arguably it was the greater responsibility of the SCOTUS to wait for the right case to try to put US election law back on a sounder constitutional basis. Also arguably--because I can't know this--they may have felt that the AZ case that was heading their way would provide that opportunity in a better way than the TX case would.
Now, here's an excerpt from an article today by John and Andy Schlafly--Election Audits Confound Never-Trumpers. In the first part of the article they make a strong case for the utter fecklessness--not to say perfidy--of the GOPe at the state level. The SCOTUS justices would have had to be fools not to have seen this, immersed as they had been in last minute election cases--they had a better overview than most of us:
Last week Georgia Superior Court Judge Brian Amero ordered a forensic audit by independent experts of 147,000 mail-in ballots counted in Fulton County, which includes Atlanta. Shockingly few mail-in ballots were rejected for invalid signatures, and the overwhelming majority of those ballots were counted in favor of Biden to provide him the margin of his reported victory in Georgia, as in other swing states.
Trump’s team sought to monitor the initial post-election sham review of ballots in Fulton County, which is Georgia’s most populous county. But Anti-Trump officials there blocked access by Trump’s Chief of Staff Mark Meadows to the process, despite how review of illegitimate mail-in ballots should have been open to the public as Democrats ran up an implausible 244,000-vote overall county margin for Biden there.
Election integrity is a matter of enormous public concern, not to be swept under the rug after the media declares one side to have won. This issue confounds the Never-Trumpers, who fail to support these election audits that include Republican review of many Arizona Maricopa County ballots.
This election audit in Georgia and also in Arizona could prove that the election was indeed stolen from Trump and his more than 74 million supporters. A recent Reuters/Ipsos poll demonstrates that most Republicans still view Donald Trump as the true winner of the presidential election.
This independent poll confirms that 61% of Republicans feel that the last election was stolen, and the same number do not think that mail-in ballots are counted accurately. Nearly 60% of Republicans view the January 6th protests at the Capitol as mostly peaceful, and by law-abiding Americans.
With no changes by the Pennsylvania Republican legislature to reduce mail-in voting fraud there, last week Democrats won a state senate election in northeastern Pennsylvania by a landslide. Perhaps Republicans would have picked up that seat if Pennsylvania had restored election integrity.
The Republican-controlled Texas legislature is wrapping up its biennial session now without enacting true election reform. The declining margins of victory for Republicans in Texas is reportedly due to changes in demographics, but the bigger reason is the increased exploitation of early and mail-in voting by the Democrat machine in the Lone Star state.
In contrast with Florida Governor Ron DeSantis, Texas Governor Greg Abbott failed to do anything to stop allowing hundreds of thousands of unverified mail-in ballots. A milquetoast bill promoted as election reform languishes in Austin, despite how Republicans have commanding majorities in both legislative chambers plus the governor’s mansion.
Failure to enact election integrity legislation signals inaction on other high-profile issues, too.
Now, in my comments below--and I'll be presenting all arguments--note that I'm arguing for a return to a true federalist vision of our constitutional order. The benefit of the doubt that I'm granting to Roberts is that that's his vision, too. Involving the local government--returning the field of election law to the states, as long as the laws are facially valid--would allow ordinary Americans to regain control. That's what the Founders envisioned in the Constitution, and that would have far more legitimacy than a judicially imposed solution. This doesn't mean that the SCOTUS would abjure involvement in any and all election law cases--only that they would defer to the levels of government closest to the people. Which is exactly what the Constitution envisioned. This long audit process may, in the long run, prove to be exactly the medicine needed to restore integrity to our electoral process.
So, the comments from the other post: