Don’t Count On This Court

Everything is running a little late in 2020. Despite the fact that it is July it is still Supreme Court watching time with several important decisions still to be announced. The Court has sent a few largely ignored signals and added to them last week. Let’s explore.

Hopefully this week we will get decisions on the fate of Obamacare and Trump’s financial records. (I anticipate them to be the last announced and that could mean another week.) Don’t be surprised by narrow rulings (especially in the Trump documents cases); this Court has a history of punting.

Last week the non-decision announcements were as, if not more interesting and telling, than the announced decisions.

In a classic “punt formation” the Court decided to hear a case involving Congress’ right to examine redacted material in the Mueller Report. I fear the root of this decision is so that they do not have to make a ruling in the matter. I assume the justices are reading the polls and assuming that Trump will not be reelected. (I wish I was sure of that!) Since this case won’t be argued until next term (which begins the first Monday in October) if Trump were to lose the election it renders this specific case moot and they can avoid making a ruling. Should Trump win and the ruling go against him the bad news would not be revealed until well after the last election he will ever have to run in. The Court is playing into the Trump strategy of if he can’t quash bad news at least defer it until after the election.

We are about four months out from Election Day 2020 and I still contend we haven’t seen the worst of it yet. Last week the Court signaled that they will be compliant bystanders to fraud and abuse of the electoral system via two brief unsigned orders released on Friday. (Was this a holiday Friday news dump?)

In Merrill v People First of Alabama the court issued a temporary stay of a lower court decision blocking an Alabama law mandating a copy of photo ID and the signature of two witnesses or a notary public in order for an absentee ballot to be valid. Obviously those restrictions constitute a discriminatory hardship especially for Black and poor voters. Even if the case is favorably resolved prior to Election Day the confusion helps suppress the vote. Remember in Alabama it is reasonable to expect Trump to win a must win (for Trump) state but the Doug Jones – Jeff Sessions U.S. Senate race is less of a sure thing if there is a large African-American turnout.

In Texas the legal water is a bit deeper but at least in the immediate future the proponents of voter suppression (read: Republicans) are the winners. The case in question is Texas Democratic Party v Abbott. In Texas voters over 65 can vote absentee without any real issues. (A demographic usually favorable to Republicans) For those under 65 it is nearly impossible. With a pandemic raging it is reasonable to see where this could be an issue. Again in Texas we have a Senate seat somewhat in play; Republican Senator John Cornyn is running for reelection.

I see both Trump and Cornyn winning in Texas in any circumstance but if the turnout of younger voters is significantly suppressed it is close to a lock. If Trump were to somehow lose Texas it’s game over.

What the Court has done in this case is deny an expedited hearing in the matter almost certainly assuring that it will not rule until after the election. Kind of like putting in the smoke detectors after the fire destroys the building.

The Roberts Court appears to be especially talented at making very narrow rulings and punting. America needs a brave, not cowardly Court.

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