Once again Monday, Justices Alito, Thomas, and Gorsuch, endorsed the radical proposition that the Supreme Court has authority to overturn the Pennsylvania Supreme Court’s interpretation of the Pennsylvania Constitution, and argued the cases should have been heard. Thomas wrote that the court’s refusal was “befuddling,” and Alito wanted to set some precedence. “We failed to settle this dispute before the election, and thus provide clear rules. Now we again fail to provide clear rules for future elections,” Thomas wrote. “The decision to leave election law hidden beneath a shroud of doubt is baffling. By doing nothing, we invite further confusion and erosion of voter confidence. Our fellow citizens deserve better and expect more of us.”
Alito, joined by Gorsuch, wrote “A decision in these cases would not have any implications regarding the 2020 election. […] But a decision would provide invaluable guidance for future elections.” They failed in their efforts to prevent Pennsylvania and North Carolina from allowing their citizens from casting votes that counted before the election, and now from setting up the Supreme Court to disenfranchise citizens next time. And who knows what’s going to happen with Coney Barrett when she gets her sea legs under her and is a little further away from the Trump stench still clinging to her seat. Cases are coming to the courts, which we know because Republicans states are on a voter suppression binge right now, with more than 100 bills in 28 state legislatures.
Which means a few things. First, Congress must pass the For the People Act, the legislation in both the House and Senate which would emove existing barriers to voting, secure the elections processes to secure the integrity of the vote, expand public financing to fight the pernicious entrenched and monied interests, and ban congressional gerrymandering to ensure equal and fair representation in the House of Representatives. The Congress also must pass the John Lewis Voting Rights Act to restore the protections the Supreme Court gutted in 2013. Those protections have to be established to save future elections from the Trump Supreme Court.
And that means that Senate Democrats will have to end the filibuster, either entirely or just for the purposes of election-related legislation. Because there’s absolutely no way 10 of the current crop of Republican senators is going to do the right thing to restore our democracy. Mitch McConnell has already been maximizing obstruction, first in refusing to allow the Senate to come into session during the first half of January, blocking the new Democratic majority from doing much of anything. Then he spent the next few weeks refusing to come to a power-sharing agreement with Majority Leader Chuck Schumer. That delayed committee work on President Biden’s cabinet nominees and legislation to respond to the COVID-19 pandemic.
As long as Republicans can cheat to keep “winning” elections—by voter suppression, by gerrymandering, by using Trump’s packed courts—they will do so, and will prevent any efforts by Democrats to keep elections free and fair. Which is one of the primary reasons McConnell tried so hard to extract a promise, written into the organization resolution, from Democrats to preserve the filibuster. He got strong statements in support of keeping the filibuster from Democrats Kyrsten Sinema and Joe Manchin, promises that they will have to be challenged over. They’ll have to make the decision whether to uphold this Jim Crow relic and betray their constituents.
What the Supreme Court’s conservatives are also showing, though, is that the power of all of the Federalist Society appointees—at every level in the federal judiciary—is going to have to be diluted. Trump and McConnell installed more than 225 judges. Some at the district court level were appointed in consultation with Democrats, but the critical appeals courts and the Supreme Court—where Trump got three appointments—need to be rebalanced. The circuits in particular need to be expanded, as they are also overworked and understaffed. The large number of judges deciding to take senior status, reducing their workload and creating vacancies helps on both counts—they’re still available to take cases but also open seats—but adding seats is overdue.