Supremely disappointing 8

When President Trump succeeded, after bitter struggles, in establishing a majority of conservatives in the Supreme Court, his voters felt enormously relieved. They and he trusted that now the country would be protected from the worst the revolutionary globalist Democrats could do to destroy the free Republic.

But as it turns out, they were mistaken. With the shining exception of Clarence Thomas, the George W. Bush appointee who has proved to be staunchly conservative (supported to some extent by Neil Gorsuch and Samuel Alito), the justices chose to let the free Republic go.

Margot Cleveland writes at The Federalist:

On Feb. 22, the Supreme Court refused to hear two 2020 election-related appeals, falling one vote short of the four needed for the high court to agree to hear the case. Justice Clarence Thomas dissented from the denial of certiorari, as did Justice Samuel Alito in a separate dissent, joined by Justice Neil Gorsuch.

With Joe Biden now a month into his office as president of the United States, Americans may shrug at the court’s decision, but we shouldn’t: the Supreme Court’s abdication of its authority to answer important constitutional questions only encourages further lawlessness by state election officials and courts, undermines voter confidence, and threatens even more chaotic federal elections.

The two cases the Supreme Court rejected on Monday both involved the 2020 election in Pennsylvania and the constitutionality of a state court decision overriding an unambiguous deadline the Pennsylvania legislature established for the receipt of mail-in ballots by 8 p.m. on election night. As Justice Thomas explained in his dissent, “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 post mark—that the ballots were mailed by election day.”

The Republican Party of Pennsylvania and several members of the Pennsylvania House and Senate attempted to challenge the Pennsylvania Supreme Court’s decision in the U.S. Supreme Court before the election, but, at the time, the justices refused to expedite the case, leaving the petitions for review to proceed under the normal briefing schedule. But following briefing, the court denied the petition on Feb. 22.

Thomas dissented from the court’s denial of the petition for certiorari, calling the court’s refusal to hear the case “inexplicable”. In his dissent, Thomas explained both the problem with the Pennsylvania Supreme Court’s decision and why it was imperative for the U.S. Supreme Court to enter the fray.

“The Constitution gives to each state legislature authority to determine the ‘manner’ of federal elections,” Thomas opened his dissent, citing Article I, § 4 clause 1 and Article II, § 1 of the national Constitution. “Yet both before and after the 2020 election, nonlegislative officials in various States took it upon themselves to set the rules instead,” the originalist jurist continued.

Whether such nonlegislative actions violate the Electors Clause of the Constitution, as Article I, § 4 clause 1, has become to be known, or Article II, § 1, which governs the selection of the president, is the essence of the exercise of self-government, Justice Thomas wrote, because “elections are ‘of the most fundamental significance under our constitutional structure’.”

Elections, however, “enable self-governance only when they include processes that ‘give citizens (including the losing candidates and their supporters) confidence in the fairness of the election,” the dissent continued. “Unclear rules threaten to undermine the system. They sow confusion and ultimately dampen confidence in the integrity and fairness of elections.” … The Supreme Court should make clear “whether state officials have the authority they have claimed” [and]  “if not,” then the Supreme Court should “put an end to this practice now before the consequences become catastrophic”, Justice Thomas wrote.

Yet the Supreme Court refused to hear the case. But why? Both constitutional and prudential principles weigh in favor of granting certiorari.

Constitutionally, while federal courts only have the power to hear a “case or controversy,” meaning the Supreme Court lacks jurisdiction to hear “moot” cases, here there is a well-established exception to the mootness doctrine: the capable-of-repetition-but-evading-review exception.

This exception to the mootness doctrine provides that federal courts hold authority to resolve cases where “the challenged action is in its duration too short to be fully litigated prior to cessation or expiration” and where “there is a reasonable expectation that the same complaining party will be subject to the same action again.”

Both criteria exist here, Justice Thomas wrote, as the Pennsylvania Supreme Court’s decision came a mere six weeks before the election, and the petitioners in the cases—the state Republican party and state legislators—are likely to “again confront nonlegislative officials altering election rules”.

In his separate dissent, Justice Alito also concluded that certiorari should be granted because the cases “present an important and recurring constitutional question.” His dissent, joined by Justice Gorsuch, focused mainly on the mootness question.

The Pennsylvania Supreme Court decision was so broad, Alito wrote, that the questions presented to the U.S. Supreme Court are “surely capable of repetition in future elections”.  “That decision,” Alito explained, “held that a state constitutional provision guaranteeing ‘free and equal’ elections gives the Pennsylvania courts the authority to override even very specific and unambiguous rules adopted by the legislature for the conduct of federal elections.”

“Indeed, it would be surprising if parties who are unhappy with the legislature’s rules,” Justice Alito continued, “do not invoke this decision and ask state courts to substitute rules they find more advantageous.”

Not only were the cases not moot, but as the dissents both made clear, the cases both “call out for review”, as Justice Alito put it. The cases present “an important and recurring constitutional question” [one that has] “divided the lower courts”. … Further, as Justice Thomas stressed, “postelection litigation is truncated by firm timeliness,” which “imposes especially daunting constraints when combined with the expanded use of mail-in ballots.”

Thomas’s dissent highlighted another significant reason for review. “Because fraud is more prevalent with mail-in ballots,” Justice Thomas wrote, “increased use of those ballots raises the likelihood that courts will be asked to adjudicate questions that go to the heart of election confidence.”

Here Justice Thomas wisely noted in his dissent that “settling rules well in advance of an election rather than relying on postelection litigation ensures that courts are not put in [the] untenable position of either potentially disenfranchising a subset of voters or ignoring the rules the legislature believes necessary to ensure election integrity”.

Yet the Supreme Court denied review.

Maybe the six justices who voted against certiorari believe the country will be better off without re-litigating the election. The denial, however, will not heal a country that witnessed state officials and courts changing the rules mid-vote—not just in Pennsylvania, but in Wisconsin and Michigan too. Then her citizens saw the Supreme Court seemingly ignore those violations of the Electors Clause when Texas sought relief in the Supreme Court.

Worse yet will be the damage done to our republic when the bending and breaking of election laws repeats in the future.

For now, as Justice Thomas concluded, by doing nothing, the Supreme Court invites erosion of voter confidence.

We citizens deserve better and expect more.”

It is one of the worst of our – the citizens’ – disappointments.

Considering that, in the perception of half the voters, constitutional law had been broken, and considering what was at stake – nothing less than the free Republic itself – and how confidently we had looked to the Supreme Court as the most dependable and incorruptible of the Constitution’s protectors, its refusal to do what was to us clearly right was worse than a shocking and painful blow, it was crushing.

And it is hard to believe that the refusal was for reasons of constitutional law and not political choice.

Triumph and disappointment 9

President Trump is strong, but the Big State is stronger.

Bruce Bawer finds consolation in historical precedents for the political disaster happening now. They are interesting, but we omit them from our quotation of his article at Front Page, being concerned for the moment only with the great disappointment he describes:

This year’s apparently successful election fraud … was not a stand-alone event but the culmination of several years of Democratic chicanery, beginning with the effort to destroy Trump’s campaign and continuing with the attempt to bring down his presidency. During these years, one public figure after another was held up to us as a hero and then shown to be yet another Big State sewer rat. …

Remember being assured by people you trusted that Bill Barr and John Durham would get to the bottom of the Russia hoax? The other day, when Texas AG Ken Paxton took his election-fraud case against four other states to the Supreme Court, were you among those who expected the three Trump appointees to join Alito and Thomas in stopping the steal?

Yes, the Trump administration has yielded one triumph after another. But living through it has also meant experiencing one crushing disappointment after another. It’s been hard not to feel that the swamp was too deep even for Trump to drain, and that, by dreaming otherwise, we were being hopelessly naïve.

For heaven’s sake, not only did Barr, after promising to deliver a long-overdue reckoning, drag his heels on the Russia probe; it now turns out that during the entire campaign season he’s known about investigations into the Biden clan that, if made public, would almost certainly have reduced voter support for Joe to a point that would’ve made the election steal impossible.

We feel duped. Deflated. Stunned in 2016 by Trump’s victory, we’re even more stunned in 2020 to see victory snatched from our president and handed to a senile, China-owned mediocrity.

We now face the prospect of an inauguration at which Joe and Hunter, Bill and Hill, Barack and Michelle – all of whom should be in prison – will be celebrating their joint triumph over Trump.

We shouldn’t let this election steal … make us feel that a golden age of morality has given way … to an era of perfidy and lies. Nor should we feel disappointed in Trump if he fails to overcome the election steal. He’s accomplished a remarkable amount, but expecting the superhuman from him is neither fair to him nor good for us. …

Our country’s Founders … in their wisdom, sought to fashion a government that would, in the face of our species’ moral frailty, stand a chance not only of enduring in the long term but also of making possible, from one generation to the next, the survival of liberty.

But the preservation of that liberty depends on us. “Freedom,” Ronald Reagan famously proclaimed, “is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children’s children what it was once like in the United States where men were free.”

Indeed. At this admittedly strange and disturbing historical moment, it’s important for all Americans of good faith to rise above any self-pitying or (heaven forfend) nihilistic sense of lost innocence that we might feel, to embrace with hope and heart our role as the Constitution’s current custodians, and – for the sake of our progenitors and our posterity – recommit ourselves to our obligation to right our beloved ship of State when she’s been buffeted, or worse, by the waves of malfeasance and mendacity.

Stirring stuff. But a gang of crooks has been wangled into power by the Big State in order to discard the Constitution and replace it with a Great Reset, a new world order, an agenda that renders our Constitutionally recognized rights no longer “unalienable”.

They will if they can scuttle the ship of State. Destroy America.

What will, what can, heart and hope do to save it?