On Monday, the Supreme Court denied appeals in eight election-related cases filed by Trump or his allies. Now, dismayed conservatives are unable to cope with reality after learning the fact that Justice Brett Kavanaugh was the deciding vote preventing the Supreme Court from taking up the pro-Trump election lawsuits.
Many of the suits urged the justices to clarify the legal gray area concerning which state government branch has the power to administer elections. According to The Hill, “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 said in a dissent that 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.
In what some analysts saw as a thinly veiled swipe at Kavanaugh, Thomas wrote: “One wonders what this Court waits for. 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. The decision to leave election law hidden beneath a shroud of doubt is baffling.”
The Hill noted that “Alito and Gorsuch wrote separate dissents from the court’s denial on Monday, but made clear they agreed with Thomas.
The conservative justices are not the only ones “baffled” by Kavanaugh’s decision to stay away from election-related disputes.
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, according to The Hill.
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 conservative newspaper 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.
Following his electoral defeat, Trump 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.