Kavanaugh dismays conservatives by dodging pro-Trump election lawsuits

Justice Brett Kavanaugh dismayed conservatives this week when he cast what appears to be the deciding vote preventing the Supreme Court from taking up pro-Trump election lawsuits.

Kavanaugh’s apparent break with the court’s three staunchest conservatives — Justices Clarence Thomas, Samuel Alito and Neil Gorsuch — seemed to catch his colleagues by surprise, and provoked ire among some on the political right who viewed the move as an act of betrayal.

Thomas in a dissent said he was “befuddled” by the court’s reluctance to take up the disputes, given that four justices — including Kavanaugh — had signaled in late October their view that the pro-Trump challengers were likely to win on appeal.  

“One wonders what this Court waits for. We failed to settle this dispute before the election, and thus provide clear rules,” Thomas wrote in what some analysts saw as a thinly veiled swipe at Kavanaugh. “Now we again fail to provide clear rules for future elections. The decision to leave election law hidden beneath a shroud of doubt is baffling.”

Alito and Gorsuch wrote separate dissents from the court’s denial on Monday, but made clear they agreed with Thomas. The dissenting justices indicated the disputes would not have disturbed the outcome of the 2020 presidential election.

As is typical practice, the justices did not provide the public with a complete view of how they voted on the petitions, or their reasoning. But the dissents by Thomas, Alito and Gorsuch strongly suggested that Kavanaugh lost his appetite to engage with the election-related disputes.

If so, Kavanaugh’s vote this week marked a reversal from his previous stance. In the run-up to the November election, he joined Thomas, Alito and Gorsuch in siding with Pennsylvania Republicans in their emergency bid to roll back voter accommodations former President Trump alleged were illegal.

Anthony Sanders of the libertarian Institute for Justice, a litigation firm, said the conservative justices’ dissents appeared aimed at Kavanaugh’s apparent flip-flop.

“Thomas, Alito, & Gorsuch seem pretty ‘befuddled’ & ‘baffled’ at Justice Kavanaugh today,” Sanders wrote on Twitter. “He voted with them to take a case on the scope of the ‘legislature clause’ last fall, but strangely is absent in granting cert in the Pennsylvania case.”

The Wall Street Journal’s editorial board also called out Kavanaugh directly in an article blasting the court for failing to end what it described as “election anarchy.”

“Where did Justice Brett Kavanaugh wander off to, since he was the fourth vote in October?” the editorial board wrote.

In their petition, Pennsylvania Republicans argued that the U.S. Constitution gives state lawmakers sole authority over elections in the Keystone State. If that view were embraced by the justices, it would mean that pandemic-era accommodations like expanded mail voting that were put in place by the secretary of state were unconstitutional.

Kavanaugh, in October, appeared sympathetic to that argument. Following the death of Justice Ruth Bader Ginsburg, Kavanaugh joined the court’s three conservative stalwarts in siding with the Pennsylvania GOP to halt the new voting rules. The court’s 4-4 tie left the accommodations intact through the Nov. 6 election.

Some see a connection between Kavanaugh’s change of heart Monday and the Jan. 6 insurrection at the Capitol that was fueled by Trump’s election disinformation.

Julie Kelly, a fierce Trump defender and self-described “agitator,” accused Kavanaugh, a Trump appointee, of cowardice in the face of pressure from Democrats and the news media.

“One can only assume since Kavanaugh changed his pre-election position on Pennsylvania, threats of promoting a ‘Big Lie’ about election fraud got to him,” Kelly wrote in the hard-right publication American Greatness.

Rick Hasen, an election law expert and law professor at the University of California Irvine, offered two guesses for why the court avoided hearing the election lawsuits. Either the justices lost interest in the disputes since they are now moot, he said, or the court stayed away because the Trump cases are seen as “somewhat radioactive.”  

“Given former President Trump’s continued false statements that the election was stolen, the case would become a further vehicle to argue that the election results were illegitimate,” Hasen wrote on the Election Law Blog. “It would thrust the Court back in the spotlight on an issue the Justices showed repeatedly they wanted to avoid.”

Following Trump’s electoral defeat, he and his allies racked up an abysmal record in court as they tried to undermine President Biden’s win through post-election lawsuits. The Supreme Court so far has declined to take up roughly a dozen such cases.

In all, the court on Monday denied appeals in eight election-related lawsuits filed by Trump or his allies. Many of the suits urged the justices to clarify the legal gray area concerning which state government branch has the power to administer elections.

The court has not cleared its docket of post-election litigation entirely, however. The justices on Friday are slated to discuss a Trump challenge to Wisconsin’s mail ballot policy and Kavanaugh could face renewed pressure to hear the case.