Earlier today, a supermajority of the Supreme Court refused to grant a stay against a radical lower court’s ruling overturning a state’s common sense election law, proving once again, that there are really only two originalists on the high court.
Last month a federal district judge in Michigan overturned the state’s election law and required the secretary of state to create ballots that offered an option for straight-ticket voting, whereby voters can check a party-line box and it will automatically render every choice down ballot for that particular party. The district judge, along with a panel of the Sixth Circuit Court of Appeals which upheld his ruling, opined that the lack of such an option, which is not even offered in many other states, violates the Fourteenth Amendment. In their estimation, this is solely a racial issue and black voters, in their view, are too dumb to know which candidate for a particular office is the Democrat, and as such, will create too much “confusion,” long lines, and “miscast ballots.”
Words cannot describe the inanity of this political argument, the violence it does to our Constitution, and the implications for state powers and the ability of Democrats to use their scandalous racialist agenda to control the outcome of elections.
For any Supreme Court Justice with even a semblance of originalism or plain common sense and respect for state powers to NOT issue a stay in deference to a state legislature (which has full power over “places and manner” of elections), especially in middle of an election, speaks volumes. Yet, when Michigan filed for an emergency stay, Chief Justice Roberts joined the five liberals on the Court to deny the request. Only Justices Thomas and Alito would have granted a stay. No explanation was given in the two-sentence order.
This is just the latest piece of evidence for why I warn in Stolen Sovereignty that merely replacing Scalia with a supposed originalist will not save the courts. The legal profession, which generates most of these lawsuits, in conjunction with the lower courts and Justice Anthony Kennedy on the Supreme Court, create an insufferable juggernaut for states in most cases. Roberts is also very unreliable as an originalist. The built-in post-constitutional precedent that has already been accrued in recent years will mitigate most of the benefit of a Republican president appointing “better judges.”
If Republicans win back the White House and maintain control of the Senate, their first priority should not be exclusively finding a good replacement for Scalia. Instead, it should be reclaiming sovereignty for the states they were elected to represent and permanently protect them from the unsalvageable federal judiciary. Issues such as abortion, marriage, religious liberty, immigration, and election procedures can and should be permanently walled off from the federal courts.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.