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Busy days, key decisions for the Supreme Court

The Examiner

It did not take long for Justice Amy Coney Barrett to assert her impact on the United States Supreme Court. She was confirmed by a vote of 52-48 on Oct. 26 and sworn into office the next day. Although she had ascended to her new position on Nov. 3, she did not participate in two decisions of the Supreme Court in which challenges were made to election officials in Pennsylvania and North Carolina over the acceptance of absentee ballots.

Bob Buckley

In the Pennsylvania case, the court was asked whether election officials could continue to accept absentee ballots three days after Election Day. In the North Carolina case, the court let stand lower court rulings that allowed the state board of elections to extend the deadline to nine days after Election Day, up from the three days called for by the state legislature. Judge Barrett did not participate in either decision “because of the need for prompt resolution” and “because she had not had time to fully review the parties’ filings.”

On the Pennsylvania case, there was a motion to expedite the petition seeking review, but that motion failed. An earlier vote on Oct. 19, before Judge Barrett’s confirmation, to block the decision of the Pennsylvania Supreme Court pending the outcome of the case was not successful as the vote was 4-4. Had the new judge participated, the court might have blocked that court decision.

However, last Tuesday, the Supreme Court, which included Judge Barrett, then refused to stop Pennsylvania from finalizing President-elect Joe Biden’s victory despite the challenge that the expansion of mail-in voting was illegal. The Pennsylvania Supreme Court had ruled that a challenge to the state law permitting the late ballot counting was too late. It was a one-sentence order and unsigned, but it is safe to say that a majority of the justices agreed with the denial. It is therefore unknown how Judge Barrett voted.

Thus, the rest is history as Joe Biden won Pennsylvania even though President Trump was ahead on Election Day. The additional votes counted before Friday gave Joe Biden the win. All votes have been certified by all states and the Electoral College will vote next week. There was a challenge filed this week by 18 states who have sued Pennsylvania, George, Michigan and Wisconsin. Few legal scholars thought that last-gasp effort would be successful, the Supreme Court on Friday rejected the case,

President Trump was probably wondering why the three justices he appointed to the Supreme Court did not declare him the victor of the election. While the most recent decision did not provide a reason to reject the challenge to the Pennsylvania election results, it may be because the will of the people has been expressed by 80 million voters.

However, President Trump’s supporters did win a victory on the eve of Thanksgiving in a religious liberty case. Judge Barrett did side with the majority in that case which ruled that New York COVID restrictions on houses of worship in that state were unconstitutional.

In an unsigned opinion, the court ruled 5-4 that the restrictions which placed limits on churches and synagogues to 10 to 15 worshipers violated the First Amendment’s Free Exercise Clause. The court said: “Even in a pandemic, the Constitution cannot be put away and forgotten.” It is interesting that Chief Justice Roberts sided with the three liberals on this decision and had voted with the four liberals who included Justice Ginsberg, still alive at the time, in an opinion that refused to lift restrictions on churches in California and Nevada.

In the New York case, the four dissenters argued that an injunction was unnecessary because Governor Andrew Cuomo had lifted the restrictions thereby making the case moot. Those who agreed with the majority argued that the governor could impose restrictions again. Justice Gorsuch said that “it may be unsafe to go to church but is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians.” He said that this disparate treatment discriminates against religion.

In an earlier case from California handed down in May, Justice Roberts wrote the opinion that upheld the restrictions. He said: Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.”  He further stated that “where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”

This is not the first time that justice Roberts has sided with the liberals on the court. Earlier this year, he agreed with the liberal justices, including Ruth Bader Ginsberg, that a Louisiana law restricting abortions was unconstitutional even though he had earlier stated that a similar Texas law was constitutional.

It does not appear that Chief Justice Roberts will always side with the other conservatives on the court. He is viewed as a pragmatic judge who views every case on the facts and the law of that case rather than take a reflexive conservative position. Few will forget his decision upholding Obamacare in 2012.

However, there are no six conservatives on the court and the other five justices do not need justice Roberts. This is undoubtedly why there was such a rush to appoint Justice Barrett. There is no question that President Trump has had a profound effect on the Supreme Court and the lower federal courts. Unfortunately for him, they did not support him in the time of ultimate need as the court rejected the challenges to the election.        

Bob Buckley is an attorney in Independence. Email him at bbuckley@wagblaw.com.