Through Justice Kavanaugh, an Expansive Judiciary Emerges

Associate Justice Brett Kavanaugh’s concurrence in a recent election case before the Supreme Court, Democratic National Committee v. Wisconsin State Legislature, has the potential to fundamentally shift the balance between the federal and state judiciaries.

The case arose when a federal district judge extended Wisconsin’s registration and ballot receipt deadlines in response to the COVID-19 pandemic. The Wisconsin state legislature appealed to the Seventh Circuit, contesting a federal court’s authority to embroil itself in an election, especially just 45 days before the country was set to go to the polls. After the Seventh Circuit stayed the district court’s injunction, the Supreme Court affirmed, with only Justices Elena Kagan, Steven Breyer, and Sonia Sotomayor in dissent.

In a remarkable footnote, Kavanaugh put forward a theory that has not resurfaced since Bush v. Gore: that federal courts are bound by the Constitution to correct state courts in their interpretation of state law governing federal elections. This theory stands in stark contrast to the division of power between the federal and state judiciaries that has held steady for almost 80 years.

Federal courts are generally bound by state courts’ interpretations of state law.

To understand the relationship between federal and state courts, we must go back to 1789. That year, Congress passed the Judiciary Act, which provided under Section 34 that “the laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.” In short, where state questions are implicated, the federal courts must apply state law. But what does “the laws of several states” mean?

The Supreme Court first answered this question in 1842 in Swift v. Tyson. In that case, George Tyson sought to enforce a bill of exchange in federal court in New York against John Swift, a resident of Maine. Tyson argued that New York law, including decisions by New York state courts, should be applied by federal courts under the Judiciary Act of 1789. The Court disagreed with his interpretation, holding that federal courts are only bound by state statutes but are free to ignore the common law of state courts, the body of precedent created by courts over time. Thus, Swift allowed federal courts to create their own common law on state questions without state oversight.

The Swift precedent was maintained until 1938, when the Court overruled it in Erie Railroad Co. v. Tompkins. Erie held that federal courts must follow state statutes and the common law of state courts when considering state questions. The Supreme Court concluded that its prior ruling had ignored the principle of federalism in granting powers to the judiciary not enshrined within the Constitution. It went as far as to say that “whether the law of the State shall be declared by its legislature in a statute or by its highest court in a decision is not a matter of federal concern.”

Justice Kavanaugh does not apply Erie to federal election cases.

Kavanaugh argues that federal courts have a role to play in state-run elections. In a footnote on page nine of his concurrence in the Wisconsin case, he posits that federal courts not only have the authority to decide electoral questions but a mandate to correct state courts “to ensure that state courts do not rewrite state election laws.”

Kavanaugh follows former Chief Justice William Rehnquist’s concurrence in Bush v. Gore, where the Court overturned the Florida Supreme Court’s order for a manual recount following the 2000 presidential election on equal protection grounds. Rehnquist acknowledged Erie, saying that “comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law.” However, he found presidential elections to be a special case in which the Constitution compels federal courts to supersede state courts.

The Constitution provides that “each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” and that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” Rehnquist and Kavanaugh base their distinction off of the fact that the power to direct federal elections is granted wholly to state legislatures, not state courts. Therefore, where state courts impose any “statutory scheme that provides for appointment of Presidential electors,” they must be reversed.

Justice Kavanaugh’s rejection of Erie fundamentally shifts our understanding of federalism.

Of the three justices who signed onto Rehnquist’s concurrence in 2000, only Justice Clarence Thomas remains on the bench. However, this expansive understanding of federal judicial power in federal contests may see a revival through Kavanaugh. Justices Gorsuch and Alito, who seem to have ideologically aligned with Kavanaugh in recent cases, may also join with him.

Should Kavanaugh’s interpretation be adopted by an increasingly conservative Court, it would fundamentally alter our understanding of federalism within the judiciary. The states have long been thought of as the final interpreters of their own laws. The rejection of Erie would dramatically increase the power of federal courts to intervene in disputes of state election law and create a federal common law on state issues. State-run elections would be in federal hands.

What’s next is unclear.

We may not see a ruling on the issue anytime soon. Just recently, the Court rejected hearing Texas v. Pennsylvania, where a coalition of 17 attorneys general and 106 congressmen led by Texas Attorney General Ken Paxton alleged that Pennsylvania, Wisconsin, Michigan, and Georgia unconstitutionally allowed state courts to change election rules. Ohio submitted an amicus brief specifically asking the Court to define its interpretation of the Elector’s Clause. However, the Court denied hearing the case on standing grounds and ignored the merits of the constitutional question.

Meanwhile, members of the Democratic and Republican parties struggle to orient themselves within Kavanaugh’s new constitutional paradigm. Liberals worry that a conservative majority could throw out ballots in key states if they were counted pursuant to a state court’s ruling rather than the legislature’s approval. While the GOP has tried to exploit Kavanaugh’s interpretation to overturn the apparent result of the election in federal court, some members within the party are wary that Democrats will use the same tactics in future elections. An amicus brief filed at the Court by prominent Republicans, including former Governor Christine Todd Whitman of New Jersey and former U.S. Senator John Danforth of Missouri, argues that “in 2020, the federal court plaintiffs and Applicants are Republicans. If a majority of this Court encourages their approach of [misapplying the Bush v. Gore concurrence], the Democrats would surely follow suit.”

Since the Electoral College met and elected Joe Biden president, it seems that Kavanaugh’s footnote will likely remain a footnote for the time being. However, midterm elections are only two years away, when the ghost of Bush v. Gore is sure to be resurrected once again.

*The views expressed in this article solely represent the views of the author, not the views of the Chicago Thinker.