The Timing of DNC v. Wisconsin State Legislature

The Supreme Court released its opinion about thirty minutes before now-Justice Barrett was confirmed.


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.

NEXT: Should Justice Barrett Recuse from 2020 Election Litigation? (Updated)

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  1. Could a Justice cast a vote in a case where she was not present when evidence was given to the court? Certainly, in a case with oral argument, I would think that, in the case of a newcomer Justice, the court would have to (a) decide the case without the new member, or (b) have new oral argument, with the new Justice participating.

    1. . . . I do get that this was not that type of case. But I’m just asking, for if/when the court is expanded to 11 or 13 (or 23, or whatevs).

      1. I don’t know about federal courts, but at the Appellate Division in New York, if there is a short bench (only four judges) at oral argument, and the vote is 2 – 2, they give the briefs and the record to a fifth judge who casts the deciding vote.

    2. Could a Justice cast a vote in a case where she was not present when evidence was given to the court?


  2. (Query why the Chief did not administer the constitutional oath; methinks he did not want to be anywhere near the White House)

    Maybe she asked Thomas?

    1. I thought there was some custom that the senior justice administered the oath.

      But maybe not, and even if so, maybe Thomas is not the senior justice.

      Just guessing.

  3. Quote: “But you better believe that Justice Barrett will have to decide how to proceed on an election case very soon.”
    I think Justice Barrett will decide on the merits of the case, and if Biden wins, he wins. Unlike if it had gone to the House, where even if Trump won by 10 million votes, Biden would be found the winner.
    Obviously she is the better choice for deciding the election. But don’t think that will stop Democratic whining and violence if Biden loses.

    1. Um, you are aware that in these matters, each state gets one vote in the House, which is cast according to the majority of House members from that state?

      So what matters is not whether you have a majority of House members, but if you have a majority of members from a majority of states. Having every House member from a given state is just bouncing the rubble, gets you nothing.

      Of course, the vote is by the incoming House, so it’s at least possible that the Democrats could end up with the sort of majority that actually matters. But I don’t believe they’d prevail under the rules at the moment, assuming everyone voted by party.

      1. If Trump won the popular vote by 10 million votes, it’s almost certain that Republicans would re-take the House as well. But you’re right to point out that a Presidential election in the House would be by delegation as opposed to by member.

    2. It’s pretty impossible to imagine a scenario where Trump wins by 10 million votes but does not win the Electoral College.

      1. I’ve got a fairly vivid imagination, but I’ll grant the scenario isn’t terribly plausible. You’d basically need the swing states to go Democratic, while either the reliable ‘blue’ states didn’t bother showing up to vote, or turnout went though the roof in ‘red’ states.

        Now, I understand the Biden campaign is saturating the swing states with advertising, so that part is plausible. But hatred of Trump will be enough to guarantee Democrats turn out in ‘blue’ states.

        So you’d need an insanely high turnout in ‘red’ states for that scenario, and I don’t see how that happens and Biden still wins the swing states.

  4. Republicans are laying the foundation on which Democrats will build America’s future.

    It’s like the clingers never read any Twain.

    Half-educated has consequences.

    1. In the sense that, when you demolish a house, the rubble sits on the foundation, sure.

      Venezuela in the North will rest on a foundation built by Republicans, but it will rest there as a ruin built by Democrats.

      1. typical progressive
        Believing they can achieve the utopia of scandinavia using the policies of the USSR, Venezuela and cuba

  5. Bush v. Gore will be a precedent, in more ways than one.

  6. Consistent Roberts opinion: federal courts should not interfere in state laws during an election. Seven days left, let’s not tie up Wisconsin.

    1. They should, however, be willing to grant an injunction requiring that the ballots accepted in violation of the law be segregated from the ones in conformance of it, so that later litigation would not be futile.

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