For most new Supreme Court justices, we have to wait weeks, if not months, for them to reveal themselves through Court rulings. We can expect that to change in a big way for Justice Amy Coney Barrett. Confirmed by a 52-48 vote in the U.S. Senate on Oct. 26, Barrett was sworn in as associate justice the very same night by Clarence Thomas. She faces a case immediately, and it’s as politically charged as they come.
As Liberty Nation reported recently, the Pennsylvania Supreme Court ordered extending the received-by deadline for counting mail-in ballots. It also mandated a presumption of timeliness for non-postmarked ballots received after Election Day but before the judicially created deadline. Democrats were delighted, but Republicans went to the U.S. Supreme Court, asking for an emergency order preventing the Pennsylvania Supreme Court from changing the deadline.
The Court was tied 4-4 on whether to issue the order, so it took no action. The justices who would have granted the injunction took the step of announcing their votes publicly, however, and they are the current conservative bloc of Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. The smart money bet is that Barrett would rule in agreement with that group rather than the liberals and Roberts on the other side. While that ordinarily would be a fun argument for court watchers to speculate on, it just got real because Pennsylvania Republicans are going for a second bite at the apple, with a Justice Barrett in place to break that tie vote in their favor.
The previous petition asked for an emergency order. In such a case, the justices decide based only on the petitions in front of them, not after a hearing or arguments. The latest petition filed by the Republican Party of Pennsylvania asks for a full-on argument and expedited so the Court may decide the issue before Election Day. It cautions:
“With courts around the country weighing similar extensions of received-by deadlines that could push voting past Election Day in numerous states, the issues presented are important, recurring, and in need of this Court’s immediate resolution. This Court’s timely intervention could provide desperately needed clarity and help states avoid the sort of last-minute changes in election rules this Court has consistently warned against.”
The case’s outcome could determine who wins Pennsylvania and is elected president. Barrett might start the term and her tenure on the Court without voting at all, however. She could do something that would delight the left and upset many conservatives: recuse herself. J. Michael Luttig, a George H.W. Bush-appointed Court of Appeals judge, says:
“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.”
As we see her decide to take cases like these or not, and what opinions she joins or writes, we should expect to learn a great deal more in short order about the difference between Judge Barrett and Justice Barrett.
Read more from Scott D. Cosenza.
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