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For the first time in memory, the Supreme Court is not just split on ideological grounds but on political grounds. All the conservatives are Republican appointees and all the liberals Democratic appointees. That division could be significant for the upcoming election. NPR legal affairs correspondent Nina Totenberg has more.
NINA TOTENBERG, BYLINE: Chief Justice John Roberts has worked hard to persuade the public that the justices are fair-minded legal umpires, not politicians in robes. But that image got pretty scruffed up earlier this month when the conservative court majority refused to allow six more days for absentee ballots to be received in Wisconsin's election for thousands of state and local positions. In the weeks leading up to the election, the COVID-19 pandemic had become a public health crisis. About a million more voters than usual requested absentee ballots, and local officials were unable to keep up with the surge. To mitigate that problem, the lower courts allowed an extra six days for election officials to receive completed absentee ballots.
But the day before the election, the Supreme Court overturned that ruling by a 5-4 vote. The result was that tens of thousands of people who had not yet even received their absentee ballots were forced to, as the dissenters put it, choose between their health and their right to vote. The TV footage of people wearing masks waiting for hours to vote at the very few precincts that were open amid the pandemic was, to say the least, not a good look.
The majority opinion was unsigned, so no one knows who the principal author was. But we do know some things. First, the emergency appeal in the case came through the justice assigned to that region of the country - Brett Kavanaugh. He would have written a memo about the issues presented, likely with a recommendation, but other justices would then chime in. And in a voting case, Chief Justice Roberts assuredly would have played a pivotal role.
Supreme Court biographer and CNN legal analyst Joan Biskupic is author of a critically acclaimed biography about Roberts.
JOAN BISKUPIC: John Roberts' fingerprints are on this as chief justice and as someone who has owned this area of the law.
TOTENBERG: Indeed, as far back as 1982, when Roberts was a staffer in the Reagan administration, he led an ultimately unsuccessful effort to persuade the president not to sign the extension of the 1965 Voting Rights Act. Years later, by then on the Supreme Court, Roberts wrote the landmark decision gutting a key provision of that law.
So it was no surprise when the conservative majority refused to make even a modest accommodation to the pandemic. What was surprising was the tone of the opinion. Critics, including Roberts' defenders, called the language callous, cynical and unfortunate. In fact, the word pandemic appears not once in the court's unsigned opinion. Rather, the majority sought to portray the issue before the court as, quote, "a narrow technical question."
The majority said the lower court had overstepped the Supreme Court's established rule that courts should, quote, "ordinarily not alter the election rules on the eve of an election." The dissenters replied that the court's treatment of this election as ordinary, quote, "boggles the mind." Writing for the dissenters, Justice Ruth Bader Ginsburg opined that, quote, "a voter cannot deliver...a ballot she has not yet received. Yet tens of thousands of voters who timely requested absentee ballots" are being asked to do just that.
Law professor Rick Hasen, an election expert at the University of California, Irvine, sees the legal question before the court as a close call.
RICHARD HASEN: I do think there's something to this idea that we need to stick with the rules even in the context of the emergency.
TOTENBERG: But he and others see the decision as tone deaf in light of the reality of the pandemic.
HASEN: But the court could have recognized the inhumanity of making people vote in this way. But the tone was really dismissive of the entire threat facing these voters.
TOTENBERG: Chief Justice Roberts has, on some occasions, tried to bridge the two wings of the court. But as professor Hasen observes...
HASEN: There really is not any case I can think of involving elections where Roberts has forged a larger consensus.
TOTENBERG: In fact, Roberts has written a whole host of decisions striking down laws aimed at limiting the role of big money in campaigns and decisions upholding partisan gerrymanders.
Again, Supreme Court biographer Joan Biskupic.
BISKUPIC: So it's not just voting rights; it's a broader overlay here of representation. It often will favor Republicans. But more fundamentally, it seems to favor entrenched powers - the status quo in many states - against ordinary citizens. And we certainly saw that in Wisconsin.
TOTENBERG: Nina Totenberg, NPR News, Washington.
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