Writing about the Supreme Court in 1961, the famous law professor Alexander Bickel praised what he
called “the passive virtues.” As he explained, “The jurisprudence of the Court has developed certain
doctrines whose chief content is a generalization on the timing and limits of the judicial function. They
are loosely referred to as jurisdictional.”
The Court, Bickel argued, can and should use those doctrines to avoid hearing cases until they are “ripe”
for adjudication or if they are “political,” not legal questions. Doing so allows it to avoid getting
entangled in some of the most controversial issues of the day unless or until it has to take them up.
“None of the devices for avoiding adjudication,” Bickel observed, “work any binding interference with
the democratic process….” Instead, he thought they would bolster the Court’s “prestige and the quality
of its principles, its reasoning and its rhetoric….”
What the Supreme Court did on Monday, when it declined to rule on the substance of a key component
of the president’s election interference plan, is just what Bickel described. Its refusal to get to the merits
of the case will be welcomed by the president and his allies.
But it does a disservice to democracy and the rule of law. Under the Constitution, the president has no
role in determining who can and cannot vote.
The Supreme Court should have told him so. Instead, it did “duck and cover.”
The suit on which the Court ruled was brought by a group of 23 states that challenged the government’s
implementation of President Trump’s the executive order which, as the SOCUSBlog explains, “instructs
the Department of Homeland Security to create lists of the adult U.S. citizens in each state and to send
those lists to states at least 60 days before a federal election….(and) commands the U.S. attorney
general to “prioritize the investigation and, as appropriate, the prosecution of State and local officials …
who issue Federal ballots to individuals not eligible to vote in a Federal election.”
Another “provision requires states to give the U.S. Postal Service a list of voters to whom the states
intend to send mail ballots, and it prohibits the USPS from mailing ballots to voters who are not on the
lists of “enrolled” voters that the USPS will create.”
It doesn’t take 20/20 vision to see what the president is up to and how his order ignores the
Constitution. But the Roberts Court chose to close its eyes.
Close to the start of its opinion, it made its “Bickelian move.”
“The Government,” it said, “is likely to prevail on the merits of its argument that the District Court
lacked jurisdiction to enter the judgment (enjoining the president from moving forward with his plan to
get the USPS to decide who can get mail-in ballots).” The Court suggested that “two related doctrines…
block the States’ suit.”
“One is standing, which requires ‘an injury that is concrete, particularized, and imminent rather than
‘conjectural or hypothetical.’… The other is ripeness, which forbids federal courts to adjudicate disputes
that are dependent on ‘contingent future events that may not occur as anticipated, or indeed may not
occur at all.’”
The Court found that because the president’s executive order concerning mail-in ballots had not been
implemented, the states that sued to stop it had not yet been injured. And without having suffered an
injury, they lacked standing. As the Court put it, “The true ‘source of any injury’ to the States would be
the downstream action that the Secretary ‘might take in the future’ to implement…(the
order)…Emphasis on might”
The decision’s twisted logic was fully revealed when the Court said, “The lower courts saw it differently,
concluding that the States suffered ‘a present injury’…because (the executive order) required them ‘to
begin planning now on how to comply with’ it…. But the States ‘cannot manufacture standing merely by
inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly
impending.’”
Inflicting harm on themselves? If it wasn’t so sad that line would be comic.
The Supreme Court treated the president’s executive order as a benign request that his subordinates are
free to ignore. From the moment it was issued, it had the force of law and was binding on those to
whom it was addressed.
And it contained serious and credible threats of criminal prosecution against state officials who do not
do what they are told by the Cabinet officials to whom the executive order was addressed.
As Justice Sonia Sotomayor noted in her dissent, ”A commonsense reading of the Executive Order,
corroborated by the Government’s own representations, makes clear that the respondent States face a
sufficiently concrete and imminent injury to satisfy Article III…..(T)he respondent States,” Sotomayor
adds, “have standing based on the credible threat that the Government will initiate investigations and
prosecutions because they refuse to use the lists.”
All this back-and-forth about standing may make lawyers happy and leave the rest of us puzzled. But
don’t be fooled, there is a lot at stake.
The Court has freed the president from the need to comply with a lower court order that stood in his
way. While there is another injunction in place about which the Supreme Court has said nothing, it has
given the president leeway to continue his election-interference plan.
Justice Katenji Brown Jackson rightly calls out the conservative majority’s “caginess” and points out the
disservice it does to states, which are responsible for administering elections, and “the voting public.”
“To be sure,” she notes, “the Court has not foreclosed States from challenging this blatantly
unconstitutional Order. But it declines to explain when, exactly, is the right time to bring a meritorious
election-rule claim challenging unconstitutional interference with electoral processes.”
Note, no dodging the real issues there.
Justice Jackson says what anyone should recognize both about the illegality of the president’s executive
order and about the “disservice” done by a “ruling that contributes to pre-election chaos instead of
quashing it….”
The Court’s decision is a wonderful example of how it can use the “passive virtues” to serve substantive
and, in this case, pernicious aims. And in this case, they weren’t even used well.
As Law Professor Steve Vladeck put it, the Court’s suggestion that the suit brought by the states is
“premature is, to use a technical word, bollocks…it’s.. a ridiculous rationalization by the Court.” What
Vladeck doesn’t say is that the decision damages both the legitimacy.
Austin D. Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is an internationally renowned scholar whose interdisciplinary work examines law in relation to culture, violence, and the liberal arts. His academic foundation includes a B.A. from Providence College (1969), an M.A. (1970) and Ph.D. (1973) from the University of Wisconsin, and a J.D. from Yale Law School (1988). He has also received honorary degrees, including an LL.D. from Providence College (2008) and an A.M. from Amherst College (1984). Sarat has also been awarded the Jeffrey B. Ferguson Memorial Teaching Prize at Amherst in 2022 and the Ronald Pipkin Service Award as well as many others
Editor’s Note: At a moment when the once vaunted model of responsible journalism is overwhelmingly the play thing of self-serving billionaires and their corporate scribes, alternatives of integrity are desperately needed, and ScheerPost is one of them. Please support our independent journalism by contributing to our online donation platform, Network for Good, or send a check to our new PO Box. We can’t thank you enough, and promise to keep bringing you this kind of vital news.
You can also make a donation to our PayPal or subscribe to our Patreon.