The left is attacking Justice Kavanaugh's concurrence in a Supreme Court decision earlier this week that declined to reinstate a Wisconsin absentee ballot return extension put in place by a lower court under the guise of the COVID-19 pandemic. Critics are calling the opinion "sloppy," but as the Ethics and Public Policy Center's Ed Whelan explains, their attacks are "sloppy" at best.
One of critics' main complaints is that Justice Kavanaugh's concurrence misapplies Bush v. Palm Beach. However, this is a baseless attack, considering the Justice Kavanaugh plainly reiterated a unanimous opinion by the Court.
Unanimous SCOTUS in Bush v. Palm Beach stated very clearly: (1) it does not defer to state court’s interpretation of a state law that applies to presidential elections; (2) state legislature exercises direct grant of federal constitutional authority in enacting such a law; ...— Ed Whelan (@EdWhelanEPPC) October 29, 2020
But, yeah, let's pretend it's "controversial" for Kavanaugh and other conservative justices to reiterate what unanimous Supreme Court said twenty years ago. https://t.co/DS4zx76iSu— Ed Whelan (@EdWhelanEPPC) October 29, 2020
Other critics essentially argue that relying on Bush v. Palm Beach is faulty, but this is also inaccurate.
Curiously, the authors make no mention of the unanimous opinion in Bush v. Palm Beach County, but instead try to discredit Chief Justice Rehnquist’s concurring opinion in Bush v. Gore (2000), which relied directly on Bush v. Palm Beach County.
They claim that “this part of Bush v. Gore has already been squarely rejected by a landmark 2015 case, Arizona [State] Legislature v. Arizona Independent Redistricting Commission.” But Justice Ginsburg’s majority opinion for five justices in that case didn’t even mention Bush v. Gore (or Bush v. Palm Beach County), much less “squarely reject” it. Further, that case’s status as a “landmark” is far from clear. In his vociferous dissent for four justices, Chief Justice Roberts stated that the majority’s position that “the Legislature” in Article I, section 4, means “the people” “has no basis in the text, structure, or history of the Constitution, and … contradicts precedents from both Congress and this Court.”
The attacks on Justice Kavanaugh are unsurprising. The left will do whatever it can to discredit conservative members of the Court.