Unless my Election Day expectations are badly mistaken, we’re going to hear a lot less from the U.S. Supreme Court in coming weeks than many anticipate, because the presidential election won’t be close enough to steal. If I’m wrong, the nation is in for a spectacle of legalistic casuistry, pettifoggery and intellectual dishonesty like something out of Kafka’s “The Trial.”
My own favorite literary portrayal of the judiciary, however, occurs in Jonathan Swift’s “Gulliver’s Travels,” in which our hero explains his native country’s legal system to Master Houyhnhnm, a philosophical talking horse who has never encountered a Yahoo capable of reason.
“I said, ‘There was a society of men among us, bred up from their youth in the art of proving, by words multiplied for the purpose, that white is black, and black is white, according as they are paid. To this society all the rest of the people are slaves.’”
Of course, Swift lived in an Ireland ruled by English judges, but the situation feels familiar. Citing a dispute over livestock, Gulliver explains: “They never desire to know what claim or title my adversary has to my cow; but whether the said cow were red or black; her horns long or short; whether the field I graze her in be round or square; whether she was milked at home or abroad; what diseases she is subject to, and the like; after which they consult precedents, adjourn the cause from time to time, and in ten, twenty, or thirty years, come to an issue.”
These days, of course, things can move more quickly when politically convenient. So it is that Supreme Court Justice Brett Kavanaugh got the ball rolling early with a recent opinion so filled with factual and legal absurdities that it became necessary for him to issue a correction. It is not recorded whether or not the great man’s well-known fondness for beer played a role.
A constitutional “originalist” like his newly installed colleague Amy Coney Barrett, Kavanaugh embraced what The Washington Post’s Jennifer Rubin called the “Cinderella theory” of voting — i.e. that votes not counted by midnight on Election Day turn into pumpkins.
This would be news to the authors of the Constitution, who lived in a time when it could literally take weeks to travel from, say, Washington to Boston, depending upon the winds and tides. That’s why the Electoral College doesn’t meet until several weeks after the election, and the results aren’t tabulated by Congress until the second week in January.
Nevertheless, Kavanaugh’s opinion claims that states “definitively announce the results of the election on election night.” This is brazen nonsense. Even the TV networks don’t necessarily do that (not that it’s Wolf Blitzer’s or Lester Holt’s decision to make).
“To the contrary,” as Mark Joseph Stern writes in an astringent takedown in Slate, “every state formally certifies results in the days or weeks following an election,” and every state always has. None certify results on election night, nor ever have. For most of American history, it’s been a practical impossibility, and remains so today.
So why would a supposedly brilliant Supreme Court justice make so elementary an error? Basically, because it’s not a mistake at all, but a necessary prelude to Kavanaugh’s attempt to cast suspicion (and to instruct Trump-appointed judges around the country) regarding mail-in and absentee ballots.
“States,” the justice pronounces, “want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after Election Day and potentially flip the results of an election.”
To which Justice Elena Kagan responded tartly in her dissent: “There are no results to ‘flip’ until all valid votes are counted. And nothing could be more ‘suspicio(us)’ or ‘improp(er)’ than refusing to tally votes once the clock strikes 12 on election night.”
Never mind, also, that Boss Trump himself has always voted absentee until 2020. Nor that many “suckers” and “losers” mailing ballots from U.S. military deployments around the world would also be disenfranchised. That’s the Trump plan to abscond with the presidency: Just don’t count upward of one-third of the ballots, and he wins.
Kavanaugh is down with it all the way. It appears likely that the rest of the GOP-appointed justices — with the possible exception of Chief Justice John Roberts, who sometimes appears concerned about the court’s future — would back his play. Assuming, as I say, that there’s any play to be made; and that the justices believe that the spectacle of courts ordering millions of legally cast votes discarded would serve even the short-term interests of the Republican Party.
If so, they ought to ditch the sacerdotal black robes and wear brightly colored red team uniforms on the bench. For that matter, I can just see Kavanaugh and Barrett decked out in cheerleader costumes with a big T on their chests, can’t you?
Arkansas Times columnist Gene Lyons is a National Magazine Award winner and co-author of “The Hunting of the President” (St. Martin’s Press, 2000). You can email Lyons at email@example.com.