Bench Memos

Law & the Courts

Re: Sloppy Shots at Kavanaugh’s Concurring Opinion in Wisconsin Election Case

It turns out that amidst all of the sloppy claims of Justice Kavanaugh’s supposed errors in his concurring opinion in the Court’s order on Monday regarding Wisconsin’s deadline for receipt of absentee ballots, Kavanaugh did make one error that even his critics acknowledge was immaterial (e.g., “doesn’t really change the substance of Kavanaugh’s ruling”) in the underlined portion of this sentence:

Other States such as Vermont, by contrast, have decided not to make changes to their ordinary election rulesincluding to the election-day deadline for receipt of absentee ballots.

Back in July, the Vermont legislature enacted a law under which all voters would be mailed ballots that they could mail in or drop off. But it’s the italicized portion of the sentence that bears on what was at issue in the Wisconsin case. Having been notified of his error, Kavanaugh has corrected it by changing “election rules” to “election-deadline rules.”

It would be good if those rushing to dunk on Kavanaugh would be so ready to acknowledge and correct the many errors they have made in mistakenly alleging other errors by Kavanaugh.

To put Kavanaugh’s trivial error in perspective: Back in 2008, in ruling in Kennedy v. Louisiana that the death penalty for the crime of child rape violates the Eighth Amendment, a five-justice majority consisting of Justice Kennedy and the four liberal justices (including Ginsburg and Breyer) purported to discern a supposed “national consensus against capital punishment for the crime of child rape.” But the five justices all overlooked a federal law enacted in 2006 that authorized the death penalty for child rape in military courts. This error occurred in a case that was fully argued and briefed and in which the justices had ample time to draft their opinion.


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