The View from Right Field

Supreme Court or Supreme Election Board?

Three weeks ago, I asked “Will Courts Be Changing Voting Rules Right Up to Election Day?”  Since then, some of the more extreme examples I mentioned in that post have been walked back.  On Monday night, the Supreme Court upheld, by a 5 to 3 vote, a decision by the Seventh Circuit Court of Appeals that overturned a federal district court decision in Wisconsin to extend the period for getting absentee ballots back to the election board until six days after Election Day.  (Wisconsin law provided that absentee ballots had to be received by Election Day.)   

What I wanted to talk about here are a couple of things Justice Elena Kagan said in her dissent in that decision.  Justice Kagan said: “As the COVID pandemic rages, the Court has failed to adequately protect the Nation's voters." and "[T]he Court's decision will disenfranchise large numbers of responsible voters in the midst of hazardous pandemic condition.”

Will Courts Be Changing Voting Rules Right Up to Election Day?

Last Friday, The Wall Street Journal had an editorial listing what I assume are just some of the lawsuits going on across the country to change voting rules for this November.  In some of these lawsuits, judges have extended the date by which ballots that are postmarked as of election day can arrive at the election authority and still be counted.  In others, courts have held that ballots received by some new court-set deadline are to be counted even if they don’t have a postmark.  The deadline for receiving ballots has been extended a few days in some states.  In Michigan, it has been extended until two weeks after the election. 

Which raises the question: Who is supposed to decide the rules for elections these days?  It used to be that legislatures would pass laws setting rules for voting; i.e., when ballots needed to be postmarked; when they had to be received; etc.  But things have changed.  Now it seems like courts are doing the deciding in a lot of states.  The question is: Why?

Just When You Thought the 2020 Political Campaign Couldn’t Get Worse

The passing of Ruth Bader Ginsburg is sad.  Obviously, I didn’t know her, but people who did have spoken so highly of her.  It is impressive.

While I hope it is not inappropriate to say, while Justice Ginsburg’s passing is sad, her passing right now is horrendous.  Could anything have happened that would have made the 2020 political campaign worse? 

Where Did All This Partisanship Come From?

I will assume most people will not say that it started with Donald Trump.  He certainly is bad, partisanship-wise,¹ but it didn’t start with him.  Some people might go back to Joe McCarthy or Richard Nixon,² but I’m thinking of something more recent.  Republicans might point to Ted Kennedy’s attacks on Robert Bork in 1986, when President Reagan nominated him to the Supreme Court.³  Democrats might point to attacks on Bill and Hillary Clinton in the 1990s (the “vast right-wing conspiracy”).  And so on.  But I am going to suggest something else.

Sometimes it is hard to remember how you felt about a particular event at the time because things that happened afterwards color your recollection of how you felt then.  Even reading contemporaneous news articles about something in the past will sometimes surprise you because you know what has happened since and the article doesn’t. 

Little Sisters of the Poor and Free Birth Control

There was considerable outcry earlier this week when the Supreme Court upheld Trump administration regulations under Obamacare that provided the Little Sisters of the Poor, and other religious groups, did not have to provide free contraceptive services under their health plan.  Well, actually, it was more complicated than that.  The Obama administration had not required the Little Sisters to provide free contraceptive services; it required the Little Sisters’ health plan to provide free contraceptive services, without charging the Little Sisters for the services.¹  The problem for the Little Sisters was, as I understand it, that they did not feel comfortable with what they had to do in order to opt-out of providing free birth control.² 

Apparently, 70,000 or more women could be left without free birth control under the Trump administration regulation, which bothers (outrages) a lot of people.  But the point is, which a lot of people seem to miss, is there is a simple way to make sure free contraceptive services are provided to all women without forcing groups like the Little Sisters to violate their religious principles: Have the federal government pay for it.  If free birth control is that important, just pass a law and provide for it.  Nobody’s religious principles are violated,³ and women get free birth control. 

Two Bad Supreme Court Decisions – From a Process Point of View

It’s been a bad week for people who see the job of the Supreme Court as applying the law, as opposed to coming up with ways to do what Congress should do but hasn’t.

First, it was the LGBT workers decision on Monday in Bostock v. Clayton County.  I think that people shouldn’t be fired from jobs for being gay, lesbian, etc.¹  And I think Congress should pass a law to that effect (as should states).  But Congress hasn’t.  I do not believe that Title VII of the 1964 Civil Rights Act, when it prohibits discrimination in employment because of an individual’s sex, covers discrimination because of sexual preference, gender identity, etc.  “Sex” did not include those things in 1964, and it shouldn’t be interpreted as including them today.  There is a proper way to do it: Pass a law.

Here’s Why Self-Driving Cars May Be a Long Way Off

A column in Wednesday’s Financial Times by Brooke Masters noted:

“Consolidation is sweeping through the self-driving cars sector like the last dance at a high school disco – everyone seems to be grabbing a partner or two for fear of being left out.”¹

Car companies are joining with each other and/or with technology companies in a race to get to the size necessary to compete in the self-driving race.  But I wonder how soon self-driving cars are really going to happen for one reason: lawsuits.

Brett Kavanaugh: Thoughts on a Story That May Never End

While Brett Kavanaugh has been confirmed as a justice on the Supreme Court, one assumes the controversy over his nomination will go on for a long time (forever-?), so it is probably not too late for me to make a few comments.

First, there is the question of whether we must automatically “Believe Women,” as a full-page ad said in The Wall Street Journal (and probably lots of other papers).¹  With respect to this question, Megan McArdle’s column in The Washington Post on Susan Collins’s vote on now-Justice Kavanaugh’s confirmation, talked about some things I hadn’t thought of before:

“Women know, in a visceral way that men never can, what it is like to live your life in consciousness of a single, inescapable fact: that virtually every man you meet is capable of physically overpowering you and taking what you won’t give them freely. We also know that if some man attacks us, it is likely to be in a private place, with no witnesses, and that the physical evidence will often be little different from the aftermath of consensual sex.

Kavanaugh, Clinton, and Kennedy

Let me see if I understand the view that some people have.  It didn’t matter what Bill Clinton was accused of doing when he was Attorney General and Governor of Arkansas.  It didn’t matter what Teddy Kennedy did when he was Senator from Massachusetts.  But it is absolutely critical what Brett Kavanaugh is alleged to have done when he was a teenager in high school and college.

Brett Kavanaugh and His Accuser

Several comments on the Brett Kavanaugh controversy:

1.  Almost regardless of what happens after this point, both Judge Kavanaugh and his accuser, whose name does not need to be repeated here, will, for the rest of their lives, be identified with this moment. One of them correctly and one of them, possibly, wrongly. 

2.  The Washington Post says that its article, etc., were not done “at the eleventh hour” because it was only last week that the accuser was willing to have her name mentioned publicly. I wonder whether that means the Post would not have published this accusation if the accuser had not been willing to identified by name.