The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Tonight around 7:30 ET, the Supreme Court decided DNC v. Wisconsin State Legislature. Around 8:10 ET, then-Judge Barrett was confirmed. And she took the constitutional oath from Justice Thomas at the White House after 9:00 ET. Wow! The Supreme Court usually moves at a glacial pace. But tonight, in the span of three hours, the Justices sharply fractured on a case that could affect the outcome of the election, a new Justice was confirmed, and the senior associate Justice held a late-night oath ceremony at the White House. Wow!And the Chief Justice will administer the judicial oath on Tuesday.
The timing of the confirmation and the constitutional oath were out of the Court's control. (Query why the Chief did not administer the constitutional oath; methinks he did not want to be anywhere near the White House). But the timing of the opinion was within the Court's control.
The application to vacate the stay in this case was filed on October 14. A response was filed on October 16. And the case has been pending for nearly 10 days. Why did the opinion drop Monday evening, moments before Justice Barrett was confirmed? At first, I was a bit cynical and suspected some gamesmanship. But on further reflection, there is a far more innocuous reason.
As soon as Justice Barrett takes the judicial oath on Tuesday, she can begin to participate in the Court's business. And, she will be able to vote on any not-yet-released case. After all, a case is not final until the opinion is issued. By waiting till the last possible minute Monday evening, the Justice were able to work as hard as possible on this important case. But had they waited another day, Justice Barrett would have had to cast an immediate vote, and could have potentially altered the balance of the majority. Her colleagues spared her that initial baptism by fire.
But you better believe that Justice Barrett will have to decide how to proceed on an election case very soon.