On the day before the midterm elections that would transform American government, the Supreme Court also did something extraordinary. In the space of about seven hours on Monday, it evaluated and rejected an emergency request from the Trump administration to let it meddle in how ballots were counted in California.
The court did so without even asking the other side for a response, something I don’t recall ever happening in connection with an emergency application from the Justice Department. The court’s order, issued Monday evening, was just one sentence long, and no member of the court had anything to say in dissent.
The court’s merciless rebuke reminded me of its treatment of a lawsuit filed by the state of Texas in 2020 after President Trump lost the election that year. It asked the justices to throw out the results in four battleground states carried by Joe Biden.
But even that litigation, which election law experts called a brazen stunt, took four days to play out. The court asked the defendants for a response, and it received more than a dozen friend-of-the-court briefs and requests to intervene, including one from Trump.
The 2020 decision, moreover, included a few words of explanation — the majority said Texas did not have standing to sue. It was also not quite unanimous. Justice Samuel Alito, joined by Justice Clarence Thomas, issued a brief statement on a technical point.
But it was nonetheless a comprehensive rejection of a wild legal theory from Trump and his allies. The justices were not willing to let Texas tell other states how to run their elections.
Monday’s order had that same music, except that it was directed at an effort by the executive branch of the federal government, which has no independent constitutional role in the conduct of elections.
Solicitor General D. John Sauer is a sophisticated lawyer, and he surely knew that his application was hopeless. Indeed, he distanced himself from its very premise. “This office has been informed,” he wrote, that the administration had discovered 20,000 people registered to vote who are likely not U.S. citizens.
Variations on that odd phrase turned up two more times in the 22-page filing. Sauer, in other words, refused to vouch for what officials elsewhere in the administration were telling him.
And for good reason, it seems, given reports that the administration’s data was deeply flawed.
“Would you agree there’s a high error rate?” Judge Trina Thompson of the Federal District Court in San Francisco asked a Justice Department attorney on Monday, The Associated Press reported.
“That’s a fair statement,” the lawyer, Kenneth Kao, replied.
Why, then, did Sauer file the application? One likely reason was that he had a demanding client. Trump must have insisted on running to the court, leaving Sauer to figure out how to do that without inflicting permanent damage to his own credibility with the justices.
A second possible reason for the last-minute application was a cynical calculation. Had the court worked on its usual schedule, the headlines would have noted only the fact of the filing and perhaps the court’s call for a response before polls closed, sending the message that something serious was afoot while the nation voted.
The court’s quick action — a “mercy killing,” in legal scholar Rick Hasen’s phrase — sent the opposite message.
Anticipating voters’ stunning repudiation of Trump on Tuesday, the court’s order the previous evening seemed to signal the start of a new era. It was just one sentence long, to be sure, but its focus and speed suggested that the justices had run out of patience with a president to whom they had long granted the benefit of the doubt.
That court’s message was an echo of what Judge Stephanos Bibas of the Third Circuit said in a 2020 opinion rejecting a challenge from the Trump campaign to the election results in Pennsylvania that year.
“Free, fair elections are the lifeblood of our democracy,” wrote Judge Bibas, a Trump appointee. “Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”
“Ballots, not briefs,” he added, “decide elections.”
Other Legal News
What I’m Reading
-
“Interbranch Litigation,” a timely look at the role federal courts play in resolving disputes between the other branches, by Payvand Ahdout, a law professor at the University of Virginia
-
“Deportation Judges,” an essay in The Yale Law Journal exploring the transformation of immigration courts, by Geoffrey Heeren, a law professor at the University of Idaho
Mailbag
Good Behavior and Life Tenure
The Constitution states in Article III that judges “shall hold their offices during good behavior.” That has been interpreted as giving them lifetime tenure. The plain language of it does not say so, and the founders certainly had the ability to write “for their lifetime” between the words “offices” and “during” above. How then can we assume that that omission implies lifetime service? — Leigh LoPresti
The conventional view, endorsed by the Supreme Court, is that “during good behavior” means that judges enjoy lifetime tenure unless they are impeached and removed.
You could argue that the reference to “good behavior” means that the grounds for impeaching judges are broader than for other officials, who can be removed only for “treason, bribery, or other high crimes and misdemeanors.” But whatever the phrase means, it does suggest that judges are entitled to stay on the job indefinitely unless their behavior ceases to be good.
Not everyone agrees that impeachment is the only way to address bad behavior by judges. A contrary position was sketched out by Saikrishna Prakash and Steven D. Smith in an intriguing 2006 article in The Yale Law Journal. They wrote that Congress could enact a law allowing ordinary lawsuits to remove judges who have fallen short of the constitutional requirement of good behavior.
I would love to hear your questions on the law, the courts or whatever is on your mind. Send them my way at [email protected].
Closing Argument
An Angry Judge Lashes Out at ICE
A six-page opinion from a federal judge in Iowa last week was an anguished and angry report from the front lines in what has turned into a war between the judiciary and federal immigration authorities. The opinion was in its way routine, and even more remarkable as a consequence.
Calling the immigration hearings provided to Ernesto Rodriguez Martinez, a Colombian immigrant, “bumbling sideshows” and “a flagrant deprivation of Rodriguez Martinez’s due process rights,” Judge Leonard Strand ordered him released.
In a footnote, the judge said he was on the verge of more drastic action. “Frankly, if I discover that the immigration court’s proceedings with regard to Rodriquez Martinez constitute that court’s standard practice, I will stop ordering bond hearings” in such cases “and will skip directly to ordering release.”
The events leading to the opinion were commonplace. In August, Judge Strand ordered Immigration and Customs enforcement to provide a hearing to Rodriguez Martinez, an immigrant from Colombia who had been detained since April. At that hearing, the judge said, the government would have to have to prove by clear and convincing evidence that his continued detention was justified.
Rodriguez Martinez is seeking asylum because he says he fears that he will be killed by the same paramilitary group that murdered his father if he is returned to Colombia. He was represented by a lawyer. But the immigration judge, an employee of the Justice Department, went forward with a hearing though his lawyer was not present. She said later that she had received no notice of it.
The immigration judge ruled against Rodriguez Martinez based on what he said was “oral testimony by both parties.” (Judge Strand said that was false. “No oral testimony was presented,” he wrote.)
In a later ruling, the immigration judge wrote that Rodriguez Martinez had waived legal representation and that he had given testimony. (Both of those statements, Judge Strand wrote, were “flat wrong.”)
“It is apparent,” Judge Strand wrote last week, “that the outcome of the so-called hearings was preordained, with the I.J. acting to rubber stamp the government’s request without putting the government to the trouble of presenting evidence. Instead of presenting ‘clear and convincing evidence,’ as required, the government prevailed by presenting ‘no’ evidence.”
Judge Strand, who was appointed by President Barack Obama, gave ICE three days to release Rodriguez Martinez. The agency complied on the morning of the second day.
Please send me your comments on the election, impeaching judges, immigration courts or anything else at [email protected]. See you next week. — Adam
The post Why a Merciless Supreme Court Rebuke on Election Eve Matters appeared first on New York Times.
