In an essay last week, Linda Greenhouse decries the Supreme Court’s decision, by a 5-4 vote, to enforce Wisconsin’s Election Day deadline for the submission of absentee ballots. I think that George Conway and David Lat, in their Washington Post op-ed defending the decision, have the better of the argument. But I’d just like to focus here on two curiosities of Greenhouse’s piece.
1. Invoking her “more than four decades of studying and writing about the Supreme Court,” Greenhouse “wonder[s] why the [majority] opinion was issued per curiam—‘by the court.’ Did none of the five have the nerve to take ownership by signing his name?”
In fact, on stay applications that the circuit justice refers to the entire Court, it’s entirely routine—the standard practice—for the majority opinion to be issued per curiam, rather than to be signed by a particular justice. (Law professor Derek Muller provides lots of examples from other “short-fuse election law cases.”) It’s baffling how someone who has followed the Court for so long could have missed that.
2. Greenhouse laments that “five justices were unwilling to do what they could to help” address the mess in Wisconsin. By this complaint, she displays what Justice Scalia called “a Mr. Fix-it Mentality,” the notion that the Court has “as its mission to Make Everything Come Out Right.” That’s an unfortunately common view of the Court, especially on the Left, but it shouldn’t be a surprise that the five justices in the majority didn’t embrace it.





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