Sunday, August 9, 2020

For Justices, the Pandemic Is What It Is

          The White House and Congress combined last week to do little or nothing about the coronavirus pandemic. For its part, however, the Supreme Court stirred into action not to try to control the virus but to prevent a lower federal court from trying to combat it.

The Court’s worse-than-nothing action came in an interim order that blocked a federal judge’s injunction ordering the Orange County, California, sheriff to adopt stricter public-health protocols to limit coronavirus infection in the county’s jail. The order in <I>Barnes v. Ahlman</I>  to stay the district court’s May 27 injunction came on a 5-4 vote that pitted the five Republican-appointed conservatives against the four Democratic-appointed liberals.

The justices have been divided along partisan lines in dealing with the pandemic ever since the Court’s shameful decision on April 6 that overrode a judge’s decision to give Wisconsin voters more time to vote by absentee rather than risk their health by voting in person. The judge’s order in the Wisconsin case came only five days before the state’s April 7 election and thus went against the Supreme Court’s general rule against court-ordered changes in procedures shortly before an election.

The judge’s order in the Orange County jail case also went against the justices’ doubts about judicial micromanagement of conditions in prisons and jails. In issuing the injunction, however, Judge Jesus Bernal noted that the jail, with 3,000 detainees, had recorded 300 cases of coronavirus infection in the week before his order. Bernal credited testimony from inmates that the jail flouted social distancing guidelines by cramming inmates into buses for transport back and forth from the jail and allowing inmates to socialize in crowded dayrooms.

Bernal, appointed to the bench in 2012 by President Obama, is not the first district court judge to be wrist-slapped for trying to protect prisoners from the risk of COVID-19. A federal judge in Ohio issued orders on April 22 and May 19 that officials at the low-security federal prison in Elkton, Ohio, consider releasing medically vulnerable inmates or transferring them to another prison or home confinement.

Judge James Gwin, a Clinton appointee in his twenty-third year on the federal bench, acted after the Elkton Federal Correctional Facility recorded nine COVID-19 deaths in a short period of time. Lawyers from the American Civil Liberties Union told Gwin that one-fifth of the inmates at the facility had tested positive for the virus and that social distancing was “literally impossible” at the prison.

            In an initial action, the Court on May 26 rejected the government’s request to block Gwin’s order, but three conservative justices—Thomas, Alito, and Gorsuch—said they would have granted a stay. The government returned with a new application, docketed on June 1 as <I>Williams, Warden v. Wilson<I>. Acting on the application as supervising justice for the Sixth Circuit, Sotomayor stayed Gwin’s order on June 4 without referring the application to the full Court. Sotomayor gave no reason for granting the stay. None of the other justices commented by opinion pro or con.

            Two months later, Sotomayor issued a blistering dissent, joined by Ginsburg, in the Orange County jail case. The evidence, Sotomayor said, showed that the jail had been “deliberately indifferent to the serious risk COVID–19 posed to the health of its inmates.” In the face of that evidence, Sotomayor complained, the justices’ decision to stay Bernal’s order left the jail “to its own devices.”

            The justices had been similarly unmoved by the risks of coronavirus infection to Wisconsin voters in April. In that case, Judge William Conley expanded the deadline for mailing absentee ballots because of the crush of absentee ballot requests. The four liberal justices dissented from the decision in <I>Republican National Committee v. Democratic National Committee</I> to stay Conley’s order. In a sharply written dissent, Ginsburg argued that the decision would result in “massive disenfranchisement” of voters unwilling to put their health at risk by in-person voting.

The Court has shown no more concern for voters in subsequent cases. The Court on June 26 rebuffed a request by Texas Democrats to reinstate a federal judge’s order to allow expanded mail-in voting in the November election. Judge Fred Biery had ruled that the state was discriminating against younger voters by allowing no-excuse absentee voting by seniors but not by younger voters. The Court declined in <I>Texas Democratic Party v. Abbott</I> to lift the Fifth Circuit’s stay of Biery’s order, but Sotomayor issued a short statement urging the appeals court to rule on the “weighty” question well before the November election.

A week later, the Court on July 2 stayed a lower court’s order easing Alabama’s burdensome rules for voters to request absentee ballots. The four liberal justices dissented in <I>Merrill v. People First of Alabama</I>. Four weeks later, the Court on July 30 intervened on Idaho’s behalf in <I>Little v. Reclaim Idaho</I> to stay a judge’s decision to give the citizens’ group Reclaim Idaho more time to gather signatures to qualify an education funding initiative for the November ballot. The group had argued that social distancing guidelines were slowing the signature gathering process.

President Trump has been rightly lampooned since his comment to Axios reporter Jonathan Swan fatalistically accepting the deaths from the pandemic. “It is what it is,” Trump said, as though he is not the leader of the world’s most powerful nation. The Supreme Court itself is the most powerful court in the world, but the justices have shown no more inclination than Trump to deal with the virus with determination and resolve.

Saturday, August 1, 2020

As Defeat Looms, Trump Sows Doubts About Election

As the presumptive Democratic nominee for president, former vice president Joe Biden tweeted a warning on April 24 that he expected that Trump “is going to try to kick the election [and] come up with some rationale why it can’t be held.” The Trump campaign responded by accusing Biden of engaging in “incoherent conspiracy theory ramblings” and describing Trump’s poll-leading opponent as “out of touch with reality.”

Trump himself confirmed Biden’s warning in a tweet of his own last week [July 30] that repeated the president’s unsubstantiated warnings about mail-in voting and suggested delaying the Nov. 3 election. “With universal mail-in voting (not absentee voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???”

Constitutional law scholars were quick to point out that Trump, as president, has no authority whatsoever to delay the election: the date is set by Congress, as the first Tuesday after the first Monday in November. Historians were equally quick to point out that the United States held the presidential election in 1864 as scheduled, with the nation engaged in civil war.

On Capitol Hill, Republican members of Congress for once found that Trump had gone too far. Trump’s enabler-in-chief, Senate Majority Leader Mitch McConnell, used an interview with a home-state television station to bat away any possibility of an off-schedule election. “Never in the history of the country, through wars and depressions and the Civil War, have we ever not had a federally scheduled election on time, and we'll find a way to do that again this November 3, ” McConnell told the interviewer from Louisville’s WNKY.

Steven Calabresi, a law professor at Northwestern University and a co-founder of the Trump-loving Federalist Society, went so far in an op-ed  for the New York Times as to label Trump’s suggestion “fascistic” and grounds for impeachment. Calabresi, who defended Trump during the impeachment, called for Trump to relent from the suggestion or resign.  

Several other Republicans followed McConnell’s example by similarly rejecting any likelihood of a delayed election, including the House GOP leader Kevin McCarthy. Those assurances are, to be sure, welcome, but they are not enough. Trump’s strategy is to sow doubts about an election that he is now on a path to losing, badly. Recall that even after winning the presidency by an Electoral College majority, Trump claimed, without any evidence, to have lost the popular vote to Hillary Clinton only because of illegal voting by illegal aliens.

Right now, Republicans need to be contradicting and correcting Trump’s lies about what are actually the minuscule risks of fraud in mail-in voting: only 143 prosecutions for mail-ballot fraud out of more than 250 million ballots cast in mail-in voting over the past 20 years, according to an article by Igor Derysh in <I>Salon</I>. With no evidence, Attorney General William Barr told the House Judiciary Committee that there was “a high risk” of fraud in mail-in voting in this year’s election, but he refused to endorse Trump’s suggestion that the election will be rigged. “I have no reason to believe it will be,” Barr said in reply to a Democratic lawmaker’s query.

It is a commonplace observation among democracy advocates that the critical test for an emerging democracy comes not in the first election, but in the next &#151; when the in-power party faces the reality of yielding power to the opposition. On that issue, the United States has a fairly good record but with a few blemishes. John Adams used the Alien and Sedition Acts to put some of his opponents in jail after winning the presidency in 1796. The New York Times’s Peter Baker noted, in a news analysis, some examples of sore losers in U.S. history: Andrew Jackson accused John Quincy Adams of gaining the presidency in 1824 on the strength of a corrupt bargain with the third-place candidate Henry Clay; Democrats mocked Rutherford Hayes as “His Fraudulency” after the Republican emerged as the winner after the disputed 1876 election.

To opposite effect, however, Al Gore, as the popular vote winner in 2000, stoically accepted the Supreme Court decision that cut off the recount in Florida. “While I strongly disagree with the decision,” Gore said in a televised address the next night, “I accept it.”

Whatever grousing there may have been about elections in U.S. history, never until now has a sitting president or a former president used the prestige of the office to fuel doubts about results after or much less before they are known. “I have never seen such an effort to sow distrust in our elections,” Michael J. Abramowitz, the president of Freedom House, a nonpartisan organization that promotes democracy around the world, told the Times’s Baker. “We are used to seeing this kind of behavior from authoritarians around the globe,” Abramowitz added, “but it is particularly disturbing coming from the president of the United States.”

Trump’s advisers have their work cut out for them in trying to convince Trump of the reality of what seems now as his likely defeat on Election Day. For the country’s sake, perhaps they can persuade him to leave quietly after the results are counted, but  that may be too much to hope for.