This is a piece I’ve written for the Washington Post on the Court’s choice to decide so many “shadow docket” election cases.
But the court didn’t have to resolve any of these voting disputes. And it shouldn’t have resolved them. By intervening so often, the Supreme Court has become a body that corrects perceived lower-court errors, not one that decides major legal issues. By stepping in without explaining its actions, it has tarnished its institutional legitimacy. And by proceeding in haste, the court has made factual and legal mistakes — bad, not just unnecessary, law. . . .
Maybe these sorts of rulings — rushed and unreasoned — could be excused if the court had no choice but to act. But the Supreme Court has complete discretion whether to intervene. No law or rule compels it to grapple with the merits of every emergency application that lands at its doorstep. Just as the court denies thousands of cert petitions each year, it could reject litigants’ requests that it overrule lower-court decisions about electoral matters. Such rejections would carry no precedential weight and would not interfere with the law’s future evolution.
Moreover, the court’s choice to cram its shadow docket with electoral cases has serious negative consequences. One is to reshape the court’s role atop the judicial hierarchy. “We are not . . . a court of error correction,” Justice Antonin Scalia once wrote. Rather, as the court’s rules confirm, its function is to resolve “important question[s] of federal law.” But no one would say that all of the electoral issues the court has recently addressed are legally important. None have involved disagreements among the federal circuits. Most have focused on the application of the well-established standard for when electoral regulations unjustifiably burden the right to vote. Whether this standard is violated by early mail-in ballot deadlines, witness requirements for mail-in ballots and so on is practically significant for voters and election officials. But legally, this is just a matter of whether a particular policy fails a test that’s not in dispute. Lower courts make these judgments all the time without anyone thinking their conclusions warrant Supreme Court review. By nevertheless granting review, over and over, the court has become exactly what it professes not to be: a tribunal that fixes the lower courts’ supposed mistakes, even when they implicate no larger legal principle.
The court’s failure to explain itself in many of its pandemic-era cases makes matters worse. Above all, the court owes its legitimacy to the reasons it generally gives for its decisions. These reasons show all sides that their arguments have been carefully considered. These reasons are also what make the court’s decisions law — the product of accepted modes of legal analysis — and not merely acts of will. When the court’s rulings are unreasoned, however, they don’t command the same respect. They don’t demonstrate to litigants that their concerns have been heard. And to the public, they seem more like exercises of political power than of judicial deliberation. This impression is all the more damaging when the court’s rulings almost all come out the same way: in favor of states that make it hard for their citizens to vote.