Holy Jesus H. Christ on an amicus brief -Charlie Pierce On Kavanaugh's new brief on voting rights

[octoberlib]

Link to tweet

?s=20

Thread:
Holy shit—Brett Kavanaugh just endorsed Rehnquist's concurrence in Bush v. Gore, which was too extreme for Kennedy or O'Connor.

This is a red alert. I can't believe he put it in a footnote. This is terrifying. https://assets.documentcloud.org/documents/7276432/10-26-20-DNC-v-Wisconsin-SCOTUS-Order.pdf



Replying to
@mjs_DC
The headline news here is that, by a 5–3 vote, SCOTUS made it harder for Wisconsin residents to cast a ballot and make sure it's counted.

But arguably the bigger news is that Brett Kavanaugh endorsed a theory so radical that the court refused to adopt it in Bush v. Gore. My God.

This is VERY BAD NEWS for voting rights. Appallingly bad. Brett Kavanaugh used a footnote to throw his support behind an extreme theory that would severely limit state courts' ability to protect voting rights. It's the revenge of Bush. v. Gore. Actually, it's much worse.

How radical is Kavanaugh's theory? John Roberts felt compelled to reject it in a separate opinion, correctly noting that federal courts should keep their noses out of a state court's interpretation of its own state's election laws.

Roberts is now the moderate on voting rights.

Gorsuch also endorsed Rehnquist's position in Bush v. Gore. And Kavanaugh joined his opinion. Both want to prevent governors, state courts, and state agencies from expanding voting rights—and have federal courts decide what how the legislature *really* wanted elections to be run.

We should be extremely worried that Kavanaugh would use this Trumpian rhetoric to describe counting ballots that arrive after Election Day. 18 states and DC count these ballots. Does Kavanaugh think that creates "chaos and suspicions of impropriety"?

[ResistantAmerican17]

1. A small taste of the new handmaiden, boofer lifetime SCOTUS

with a 6-3 majority.

[TwilightZone]

2. Why are they surprised?

It's pretty obvious where Kavanaugh would stand on the issue. Hell, he worked on the case.

[ffr]

3. Dictatorial victors get to rewrite the history books in their image.

Down the rabbit hole we go.

[Baitball Blogger]

4. Um. Shouldn't Kavanaugh have recused himself since he helped up with Bush v. Gore?

[stillcool]

6. and Roberts, and Barrett...

Supreme Court is about to have 3 Bush v. Gore alumni sitting on the bench
Joan Biskupic, CNN Digital Expansion 2018
By Joan Biskupic, CNN legal analyst & Supreme Court biographer

Updated 8:07 AM ET, Sat October 17, 2020
Kavanaugh talks Bush v. Gore case (2000)



CNN)Judge Amy Coney Barrett, once confirmed, will be one of three current Supreme Court justices who assisted the legal team of then-Texas Gov. George W. Bush in the Florida ballot-recount battle that came down to a single vote at the Supreme Court.

The court's December 12, 2000, decision cutting off Florida recounts tore apart the justices and the nation, and the case hovers in the air today as America approaches the November 3 presidential election.
Other current justices benefited from the decision giving Bush the White House over Vice President Al Gore, as they eventually became Bush appointees to the bench. Conversely, a pending judgeship for one of the current members was derailed by Bush v. Gore -- temporarily.

Three who assisted Bush
Chief Justice John Roberts
Roberts flew to Florida in November 2000 to assist Bush's legal team. He helped prepare the lawyer who presented Bush's case to the Florida state Supreme Court and offered advice throughout.
Roberts also faced a singular personal challenge during the 36-day ordeal that extended from the November 7 Election Day to the court's late-hour December 12 ruling. Then in private practice, Roberts was preparing to argue before the justices in a separate business case on November 29, and within days in December, the baby boy he and his wife had planned to adopt was born.

Justice Brett Kavanaugh
He was also in private practice in 2000 and helped the Bush legal team. He wrote on a 2018 Senate questionnaire that his work related to recounts in Volusia County, Florida.
In an interview with CNN in Washington after the justices had heard oral arguments but before they ruled, Kavanaugh said the justices were concerned about "the arbitrary, standardless nature of the recount process in Florida." He dismissed a question about political differences, saying, "I don't think the justices care if it's Bush v. Gore, or if it were Gore v. Bush. What they care about is how to interpret the Constitution and what are the enduring values that are going to stand a generation from now."


After the election, Bush hired Kavanaugh to be a counsel and then staff secretary. In the West Wing, Kavanaugh met his future wife, Ashley, who was Bush's personal secretary. Bush appointed Kavanaugh to the US Court of Appeals for the DC Circuit, where Roberts had first served. In 2018, Trump elevated Kavanaugh to the Supreme Court.
During Kavanaugh's Senate confirmation hearings, Democratic senators referred to his involvement in the Bush v. Gore litigation, but they did not ask him about the case.

Judge Amy Coney Barrett
Barrett wrote on the questionnaire she submitted to the Senate for her Supreme Court confirmation review, "One significant case on which I provided research and briefing assistance was Bush v. Gore." She said the law firm where she was working at the time represented Bush and that she had gone down to Florida "for about a week at the outset of the litigation" when the dispute was in the Florida courts. She said she had not continued on the case after she returned to Washington.
During her hearings this week, she told senators she could not recall specifics of her involvement.
"I did work on Bush v. Gore," she said on Wednesday. "I did work on behalf of the Republican side. To be totally honest, I can't remember exactly what piece of the case it was. There were a number of challenges."
Separately, under questioning from Democratic senators, Barrett declined to commit to recusing herself from any Trump election case. Trump has speculated that the Supreme Court could face another major lawsuit over the November presidential contest. "I think this will end up at the Supreme Court," he said last month. "And I think it's very important that we have nine justices."

https://www.cnn.com/2020/10/17/politics/bush-v-gore-barrett-kavanaugh-roberts-supreme-court/index.html

[Baitball Blogger]

7. And Kennedy stepping down to give the spot to Kavanaugh.

These conservatives are crooked and political. I hate the thought that I may never see a Supreme Court combinations where integrity matters anymore.

[FM123]

5. With Barrett, that is now three Justices that worked on Bush v Gore. Not good.

[Baitball Blogger]

8. Suspicious and revolting.

[crickets]

28. It is no accident. nt

[Budi]

9. Nov 3rd. It's all by design. With a Federalist SC now secured, Trump/Barr McConnell can freely ...

...challenge any damned thing they want, knowing their SC loyalists no longer have to follow legal guidlines. Their 'opinion' is all that's needed.

This is why they rushed Barrett thru before Nov 3rd.

Today I truly fear the next 4 months, regardless of a Biden win.

Expect them to move swiftly on securing all they have wished for.

Today is like fking christmas to them.

Women's Rights
Children's Rights
LGBTQ Rights
Immigrant Rights
Voting Rights
Civil Rights
...their wish list is long & ready to go.

We're about to see revealed, the true nature of McConnell's new SC hires.

And with the Repub Senate sitting in wait, codifying their decisions into law isn't far away.

[Drunken Irishman]

10. meh it seems improbable Biden's MOV would come down to ballots that arrived after election day...

[regnaD kciN]

11. I now think Trump will be re-elected...

Not by winning the election, but by the SCOTUS ex-post-facto throwing out millions of ballots and, if that’s not enough, giving states with Republican legislatures carte blanche to disregard the will of the voters and appoint Trump electors.

[Budi]

12. They needed Barrett to seal the deal.

It is shattering..

[KS Toronado]

20. I'm worried McTurtle & Hair-Doo are planning to use the SCOTUS to steal this election

with some small technicality.

[Budi]

23. Of course they are. Trump's been shouting Voter Fraud for a year.

I'm so gdamn pissed at the fools that took it all for granted in 2016.

Traded it all away for the promise of free stuff!!

[a kennedy]

13. OMGAWD.......WE ARE SO SCREWED.......

[TheDemsshouldhireme]

14. You would think

that what would create chaos and suspicions of impropriety would be not counting the votes of citizens of a state.

The supreme court is teetering on the edge of their own legitimacy.

[ancianita]

15. One comment below the tweet. "Damn you mean they don't actually care about states rights!?"

[TheDemsshouldhireme]

18. Only when they are

closing 1600 polling places after they struck down parts of the voting right act.

[muriel_volestrangler]

31. That was my thought while reading it. They want to override any decision by a state court

about state laws for federal elections on the grounds that they, as a federal court, "know better" what a state legislature "intended".

With a federal supreme court that acted in good faith, that would just be a "well, we have to have both state and federal courts look at this" situation. But there are now 5 conservatives in the SC whose idea of their 'legacy' is purely how much the far right and the extremely rich love them. 'Good faith' is a thing of the past until some sort of balance is restored.

There's a real danger they'll put this into practice in the next month.

[ancianita]

33. Yes.

You're so right about putting this demolition of state judicial power into practice.

I find it hard to imagine that Roberts would want his legacy to be the disempowering the Third Branch. But he's always been so pro-corporate, that the corporate takeover of America has to finally happen on his watch.

[LudwigPastorius]

16. Kavanaugh sees the immanent (now arrived) 6-3 majority, and...

thinks he, and his SCROTUS buddies, will be deciding this election.

To which, I say, not fucking likely, you crying inebriate.

[certainot]

17. all these cases sen whitehouse talked about getting pushed to the supremes depend on

democrats continuing the biggest political mistake in history - ignoring republican talk radio

it's the radio stupid - not the economy, not covid - every major issue can be completely distorted by those 1500 coordinated radio stations - there can be no fact based national discussion of any major issue as long as thosee 1500 radio stations are allowed to distort those issues without challenge

the other day i heard aa caller to a local rw station declare that hunter biden's computer had child porn on it. the call could have come from russia. how many other stations are getting calls like that? and so on.

james carville was wrong. two years later dems lost congress for the first time in decades and the cons gave limbaugh an honorary seat on it

[jayschool2013]

19. They've taken over

The dim-witted frat boys and now their obsequious little sister have taken over our Supreme Court.

Time to un-pack the courts.

[dflprincess]

21. I can't help thinking that a deeper look at

Kavanaugh's finances and maybe even Thomas' might not result in sudden resignations for "personal reasons".

It could all be done quietly.

[ancianita]

22. Why do it quietly? Am I missing something?

It's a great idea, but I don't get the quietly part.

[dflprincess]

25. In some ways I would

Last edited Tue Oct 27, 2020, 12:28 AM - Edit history (1)

but I'm so tired of faux right wing outrage. Quietly would keep us from having to listen to them try and turn him into a martyr and it might be faster.

[Maru Kitteh]

26. "right wing outrag" A typo perhaps but somehow incredibly appropriate.

[dflprincess]

29. It was a typo and I fixed it

But I see your point

[ancianita]

27. I hear you, but you know they don't do quietly, right?

You might as well take a break. I know I will. It's been a hard and hurtful and downright harmful year.

So that when you get back, rested and feeling better, you'll be able to face this reality: the right wing rage, along with its corporate whoring, has been what holds Republicans together, or they wouldn't have used both to such success since Reagan.

Think about their history of histrionics. Look at their noise machine on radio and Murdoch media. They will never stop. Remember Obama's tan suit? The terrorist fist bump? Exposed shoulders? A bow of respect to a foreign leader?

No matter what we do, we'll be hearing screams from the haters.

We must know that, as a party, top to bottom, we will have to permanently wear ear plugs and not worry what they think any more. They, top to bottom, have forfeited for a generation, all calls for bipartisan reconciliation and support from us. For a generation.

Seriously. Have a good long rest. They want us to walk into January exhausted, but we've got new voter younguns with us now, and we're going to need their energy.

[DallasNE]

24. Lower Courts Have Used Bush v. Gore In Decisions

"While the opinion explicitly states that it applies only to the unique circumstances of this election, it has been cited in cases at the lower levels of federal courts on election law and procedures.

Ironically, many legal scholars and political figures felt that the Court had gone too far in addressing something outside its power under the political question doctrine, while others felt that it had not gone far enough in pointing out the need for nationwide electoral reform."

This renders laughable the theory of originalism because Bush v. Gore explicitly states the decision applies to the unique circumstances of Bush v. Gore. It also ends the concept called stair decisis.

[Solly Mack]

30. K&R

My butthole will be puckered until the results. I think Biden will win but....Republicans - corrupt, crooked, shameless are capable of anything.

[Yeehah]

32. The Supreme Court has done enough insidious damage to the USA

Bush v. Gore
Citizens United

come to mind. Democrats, were they to control Congress and the Presidency, must do something to stop the insanity.