Updated at 12:20 p.m. ET on April 8, 2020.
In this grim pandemic spring, as a worried nation has shut down, political leaders such as New York Governor Andrew Cuomo and (belatedly) President Donald Trump have signaled that the government is still open. Letter carriers, Centers for Disease Control and Prevention scientists, health-care workers, and law-enforcement personnel are among the government employees risking their lives to make sure that essential functions do not collapse.
Conspicuously missing from this roll of honor is the Supreme Court of the United States, which, when social distancing and lockdowns spread across the nation, simply closed its doors, largely ceased operations, and disappeared. The Court has, as of last Friday, canceled two months’ worth of oral argument and provided no word on when, or how, it will take up its calendar again. “The Court will consider a range of scheduling options and other alternatives if arguments cannot be held in the Courtroom before the end of the Term,” the official website explains unhelpfully.
Of course, the unseen, unheard justices are—somewhere, somehow—deciding cases. Two previously argued cases were decided on Monday, one concerning the Fourth Amendment rules for police stops of cars, and the other on the burden of proof of the Age Discrimination in Employment Act. And then, Monday night, the Court unveiled a 5–4 decision saying that while the justices are staying safe at home, thousands of voters in Wisconsin must either risk infection by defying a stay-at-home order or forfeit their right to vote in important state elections.
The question arose because of the deadly speed of COVID-19, which caught everyone by surprise. When the scope of danger became clear, states across the country postponed local elections and primaries to protect voters and poll workers. In Wisconsin, the Democratic governor called a special session to consider a delay; the Republican legislative majority refused even to convene. They calculated that a lower turnout would be good for them, and walked away from their duty to the voters. Applications for absentee ballots surged—an understandable response to the looming danger at the polls—until the numbers overwhelmed state officials.
As of last week, thousands had not yet received their ballot, and so could not mail it to be received by Election Day, April 7. To vote, they would have to risk infection and journey to the polls. A federal district judge found this to be a burden on the right to vote, and ordered the state to accept ballots that arrived by April 13. A federal appeals court approved the order.
But the Supreme Court, wherever it is, stepped in at the last moment with a decision that no justice signed. Responding to a request by the state Republican Party, the high court reinstated the old deadline.
The decision, to be sure, is couched in soothing “neutral principles” terms: “The Court’s decision … should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID-19 are appropriate. That point cannot be stressed enough.”
But should it be “stressed” at all, or instead greeted with what the late constitutional-law professor Charles Black once called “the prerogative of laughter”? Bear in mind that the Court’s order, as opposed to its mollifying bromides, directs that voters who have not yet received their absentee ballot will not be allowed to vote—unless they leave their home and go to a crowded polling station, potentially contracting the virus or infecting the many older poll workers, terrified but present to do their duty.
Also bear in mind that the Court’s opinion was adopted 5–4, with the five Republican appointees—Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh—supporting it and the Democratic appointees—Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan—dissenting. And bear in mind that the election was for choosing many state officials, including judges for the state appellate courts. And finally, bear in mind that by a bizarre coincidence, Wisconsin may be crucial to Donald Trump’s reelection come fall, and that these local officials will play an important role in conducting that election.
Oral argument for the Court—too risky. Voting for you—no problem. I am reminded of the immortal words of Lord Maximus Farquaad in DreamWork Animation’s Shrek, who bids his knights to “go forth and rescue the lovely Princess Fiona from the fiery keep of the dragon.”* Thoughtfully, he adds, “Some of you may die, but it’s a sacrifice I am willing to make.”
I do not begrudge the justices their social distance. Many of them are well stricken in years—the oldest, Ginsburg, is 87; others are in their 70s. No one would like to see the justices, masked and gloved, tottering into the marble palace on First Street Northeast. But I have now passed my biblical threescore and ten, and despite my senescence am teaching my classes by Zoom. So are thousands of others across the country. Why? Because it is our job. Two months is plenty of time for even those as busy as the justices to devise a way to hold oral arguments remotely—to show the nation that the courts remain stalwart in the face of terror.
And if they can’t do their job, then by God, they should at least have the grace to explain to us why not.
The majority’s decision in the Wisconsin case can be defended on the merits, turning as it does on a narrow question of pleading and remedies. But so what? It is precisely during the close cases when the temper and morality of a judge are revealed. No one gets much credit for bravely joining 8–1 or 7–2 majorities.
The conservative majority interpreted the law narrowly, to emphasize the prerogatives of a state legislature that refused even to consider postponing an election that its majority expected the Republican Party to win. The same majority could have read the law, equally plausibly, to foreground the right of ordinary citizens to vote without literally risking their lives.
It refused. That refusal raises questions—questions that will linger for years—about whether this majority is guided by principle or by simple allegiance to the party that has gone to such lengths to seize control of the Court.
* An earlier version of this article misstated the film studio which produced the movie Shrek. It is DreamWorks Animation, not Walt Disney.