Tribe in The Hill:
Justice Thomas’s solo dissent is another matter altogether. The question at hand concerned only the relationship between a state legislature and the state constitution as construed by the state’s highest court. But Thomas seized the opportunity to rant against the nonexistent dangers of undetectable fraud and to suggest that the 2020 election — the most secure and reliable election in our nation’s history — was clouded by uncertainty that only the U.S. Supreme Court could clarify. While he had to concede that the Pennsylvania Supreme Court’s decision “does not appear to have changed the outcome in any federal election,” his ominous warning that “we may not be so lucky in the future” stoked the same false and self-fulfilling narrative of fear and victimization that on Jan. 6 wrought death and destruction on the epicenter of democracy.
Moreover, Justice Thomas shamelessly distorted the words of Yale Law School’s dean, the distinguished election law scholar Professor Heather Gerken. In the midst of Republicans’ push to pass voter ID laws that ostensibly secured elections but actually disenfranchised Democratic voters, Dean Gerken had observed that anyone bent on pulling off voter fraud on a scale large enough to swing an election would be more likely to “steal some absentee ballots or stuff a ballot box or bribe an election administrator or fiddle with an electronic voting machine.” So here’s the kicker: Gerken’s point was simply that polling places are secure, so they don’t need extra “security” from voter-suppressing ID laws. Her point was not, as Justice Thomas asserted, that mail-in voting is insecure. Turning Dean Gerken’s point upside-down, Justice Thomas cited it for the altogether different and entirely unsubstantiated proposition that voting by mail is unacceptably vulnerable to fraud. Even if that inference could be drawn – which it can’t – it had nothing at all to do with the case before the Court.
Justice Thomas’s opinion is particularly egregious because those most aggrieved can hardly speak up. Joe Biden’s need to govern makes it counterproductive to engage in unending debate about the legitimacy of the 2020 election. Dean Gerken’s role as head of one of our great law schools makes it awkward for her to chastise that school’s own distinguished alumnus, Justice Thomas, for his intellectual dishonesty.