The order was a temporary reprieve for Democrats who fought to ensure those ballots would be tallied. But the justices had split 4-to-4 on the stay request, with all of the Republican appointees on the court except Chief Justice John G. Roberts Jr. saying they would have sided with the GOP in Pennsylvania to grant the delay.
“This cake is baked as far as a future Coney Barrett justice of the Supreme Court is concerned,” Sen. Richard Blumenthal (D-Conn.), a member of the Judiciary Committee, said Tuesday. “There is no reason to think she would not be the fifth vote in this kind of Pennsylvania case, throwing out millions and millions of ballots.”
Senate Republicans, in defending Barrett’s judicial independence, have pointed to numerous examples in which Supreme Court justices have ruled on cases directly involving the president who nominated them, including on election-related disputes.
Calls for recusal, however, are louder for Barrett not only because of the proximity of her confirmation to Nov. 3, but also because President Trump has so explicitly tied her and the need for nine justices on the court to hear election cases that could decide whether he stays in office.
The president tempered those comments somewhat in an NBC News town hall last week, when he said that he does not believe Barrett “has any conflict at all” and that “she would be able to rule either for me or against me.”
“Believe it or not, I never asked her about it,” Trump said of his meeting with Barrett, referring to election-related cases. “I never talked about it; I didn’t talk any of the obvious things that you could talk about. And I think a lot of people in my position might, but in speaking to a lot of very brilliant people, and people that do this for a living, they say it’s better not to talk.”
Under questioning from Democrats at her confirmation hearings, Barrett said she would not commit to recusal on any case because it would require not only an individual evaluation, but also consultation with other justices. She said she has made no commitment to anyone on how she would rule.
“I certainly hope that all members of the committee have more confidence in my integrity than to think that I would allow myself to be used as a pawn to decide this election for the American people,” Barrett told senators on the Judiciary Committee last week.
Senate Majority Leader Mitch McConnell (R-Ky.) said Tuesday that the Senate will vote to confirm Barrett on Monday, meaning that her first full day as a Supreme Court justice could be Tuesday, Oct. 27. The most recently confirmed justice, Brett M. Kavanaugh, was sworn in the same day as his confirmation vote just over two years ago.
The Supreme Court will probably be hearing emergency petitions up to Election Day. Two cases already are at the court, although both could be decided before Barrett joins.
One comes from Alabama, where state officials want to prevent some counties from offering curbside voting. But the more important is from the battleground state of Wisconsin.
A federal district judge approved a request from Democrats and civil rights groups to require election officials to count mail-in ballots that were postmarked by Election Day but not received until six days later. But a panel of the U.S. Court of Appeals for the 7th Circuit stayed the order, saying it was up to state officials to make that decision.
That case is different from the one in Pennsylvania, and Roberts has joined his fellow conservatives in previous cases to keep the federal judiciary from granting exceptions to state laws because of the coronavirus pandemic. And there’s another difference: a tie in the Wisconsin case would mean that the 7th Circuit’s panel decision would remain in place.
If and when election cases come before a Justice Barrett, legal experts say, she will probably not have to recuse herself from those involving Trump. Still, they acknowledge that her decision — and any public perceptions of a conflict of interest — is greatly complicated by a president known for saying the quiet part out loud.
Supreme Court justices make their own recusal decisions, based on whether they have a personal stake in the case or their impartiality might be reasonably questioned and with the knowledge there cannot be a substitute if they sit it out.
“There’s a risk that it reduces the number of judges who can hear these cases,” said Derek Muller, a law professor at the University of Iowa. “It turns what should be a legal question into a political-pressure question.”
Jonathan Adler, a professor at the Case Western Reserve University School of Law, said he is leaning on the side of Barrett not having to recuse, but “it’s a much different and more difficult call largely because of the sorts of comments that the president made.”
“As in so many other ways, the current president engaged in norm-breaking behavior that pushes the boundaries of our traditional understanding,” Adler said. Trump’s remarks tying Barrett’s confirmation to election cases, Adler added, are an example of comments that are “sufficiently prominent and sufficiently amplified that they might create the sort of appearance that the recusal rules are in part designed to address.”
Michael Luttig, who served on the U.S. Court of Appeals until 2006, argued in a recent Washington Post opinion piece that a 2009 Supreme Court case, Caperton v. A.T. Massey Coal Co., may well require Barrett to recuse, or should at least counsel her decision to do so.
“The question for Barrett, if it arises, will not be whether she personally believes she can be fair in deciding an election case but, rather, whether a reasonable person would conclude that her impartiality would be inescapably overborne by the flood of influences brought to bear on her,” Luttig wrote.
Voting rights and Democratic groups worried that the Supreme Court order favoring Pennsylvania Democrats on Monday night carried ominous signs for the future.
The court’s four most conservative justices — Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Kavanaugh — would have overridden the state Supreme Court, even though it was interpreting the state Constitution’s guarantee of free and open elections. There is reason to believe, based on her decisions and writings, that Barrett is closer in ideology to those justices than to Roberts.
“My immediate reaction to the 4-4 tie was that it is bad news long-term for the protection of the constitutional right to vote,” said Joshua A. Douglas, an election law expert at the University of Kentucky. “Many news organizations were reporting it as a major Democratic ‘win.’ But the signals here are concerning: A new Justice Barrett will probably break the tie and join her fellow conservative justices, though of course we can’t know for sure. That would mean that the court is open to claims from state supreme courts under state constitutions.”
Barrett will return to Capitol Hill on Wednesday to continue her round-robin meetings with Republican senators, whose support she has mostly locked up ahead of her confirmation vote next week. Her nomination will be advanced out of the Judiciary Committee on Thursday.
There is little suspense left on her confirmation, although one question mark remains in Sen. Lisa Murkowski (Alaska), one of two Republican senators who opposed proceeding with Barrett’s confirmation process so close to an election.
But unlike Sen. Susan Collins (R-Maine), Murkowski has not explicitly said whether she would be a “no” vote on Barrett solely on procedural grounds. Murkowski on Tuesday said only that she would meet with Barrett later, which an aide clarified was sometime this week.