Amy Coney Barrett’s confirmation was feted on the White House balcony shortly after the vote was held late Monday. Supreme Court Justice Clarence Thomas swore her in before a coterie of conservative activists there to celebrate her ascension. The scene was somewhat similar to the swearings of Trump’s first two justices, but with just eight days to go until the election, it had more pomp and circumstance and took on more of a campaign feel. White House ceremonies have been controversial among justices in the past, even outside an electoral season.
As that was playing out, Trump’s second nominee to the court, Brett M. Kavanaugh, was delivering a concurrence that fit neatly with Trump’s claims about the legitimacy of mail-in voting.
The Washington Post’s Philip Bump has your complete download on what happened with Kavanaugh. The justice sided with a 5-to-3 majority in preventing Wisconsin from counting mail ballots that were sent before but received after Election Day. But in his written concurrence, he made a bunch of curious claims. Among them:
- He said states that require ballots to be received by Election Day “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. And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter.”
- The statement, particularly the “flip the results” part, echoed what Trump had tweeted that very day and aligned with Trump’s regular suggestions that late-counted votes might somehow cast doubt on the result. It also drew a curt response from Justice Elena Kagan in her dissent. “But there are no results to ‘flip’ until all valid votes are counted,” she wrote in a footnote. “And nothing could be more ‘suspicio[us]’ or 'improp[er]’ than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is to disserve the electoral process.”
- In making his case, Kavanaugh cited legal scholar Rick Pildes, who wrote that our partisan environment means late-arriving ballots might “destabilize the election result.” But in the same article, Pildes argued in favor of extending mail ballot deadlines until after Election Day.
- In his own footnote, Kavanaugh sided with then-Chief Justice William H. Rehnquist’s controversial concurrence from the last major case that decided a presidential election, Bush v. Gore. Kavanaugh cited Rehnquist in saying that “the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.” Rehnquist’s argument, though, was directly disputed by the four dissenting justices and also went too far for two justices in the majority, Sandra Day O’Connor and Anthony M. Kennedy. Critics read Kavanaugh’s statement as an assertion of extremely broad powers of the Supreme Court to intervene in the kind of state election law disputes that could lie ahead.
Kavanaugh’s concurrence wasn’t signed on to by other justices, but Thomas joined in Rehnquist’s concurrence in 2000, and it raises questions about how assertive the court might be in deciding state disputes. Just last week, for example, the court declined to temporarily halt Pennsylvania’s effort to count ballots arriving up to three days after Election Day, splitting 4 to 4; the difference in such cases now is that Barrett could provide the decisive fifth vote.
That brings us to Barrett’s swearing-in. The scene had hallmarks of a partisan campaign rally, at a time when Republicans have cast her confirmation as an electoral asset.
Even the same evening, Senate Majority Leader Mitch McConnell (R-Ky.) told Fox News: “If you recall, we had a Supreme Court fight a month before the election in 2018, and we actually gained seats [in the Senate]. I think this nominee will be a political asset for our candidates around the country — not a liability, but an asset.”
Barrett’s swearing-in at the White House was not without precedent. Justices have at times been sworn in at the White House in past administrations, with the practice ramping up in the 1980s. But then Barack Obama shelved it, saying he wanted the swearing-in to take place at the court, as a sign of a justice’s independence.
Trump rekindled the practice with White House ceremonies for Neil M. Gorsuch and Kavanaugh. But the latter occurred in early 2017, outside of a campaign context. And although Kavanaugh’s ceremony came a month before the 2018 election, it was held indoors and included less pomp.
What’s more, these scenes are already the subject of dispute among justices. When Thomas was sworn in at the White House in 1991, then-Justice Harry A. Blackmun said such scenes reinforced the “politicization of the appointment process.”
Justice John Paul Stevens also regularly argued that justices shouldn’t be sworn in at the White House, given their “very separate status” in a different branch of government that acts as a check on the executive branch. Stevens said in 2009 that such scenes reflect “incorrect symbolism” and that, upon confirmation, “the justice is on his or her own.”
“The fact that the President’s political advisors regard it as a useful and important photo-opportunity,” Stevens wrote in 1991, “emphasizes why I think we should do whatever we can to terminate the practice.”
Even Barrett’s mentor, the late Justice Antonin Scalia, acknowledged the political overtones, saying he opposed allowing cameras to record the Supreme Court swearing-in unless “there is some offsetting benefit. I would consider the elimination of the White House ceremony to be such a benefit.”
“The president’s men are going to want good theater and attractive close-ups,” Scalia added.
Nobody wants good theater as much as Trump does, and he has regularly employed the White House grounds for even-more-transparently political events — including most recently the final night of the Republican National Convention. And Barrett’s swearing-in had much more of a rally feel than either Gorsuch’s or Kavanaugh’s, though even Kavanaugh’s was controversial at the time.
At his confirmation hearings, Kavanaugh delivered a highly unusual partisan broadside against the Democrats who sought to hold up his confirmation over allegations of decades-old sexual assault, calling it “a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election.” He suggested that it was “revenge on behalf of the Clintons.”
“You sowed the wind,” Kavanaugh told Democrats on the Judiciary Committee, and “the country will reap the whirlwind.” Upon his swearing-in at the White House, Trump amped up the politicization even further by apologizing to him for his alleged mistreatment.
The same justice on Monday delivered an argument that dovetails greatly with Trump’s political one by feeding suspicion of late-arriving mail-in ballots — and he delivered it even as Trump’s next justice was getting her star treatment at the White House.