Every so often, Supreme Court watchers are reminded that these justices are working hard behind the scenes by reading briefs, exchanging memos and debating outcomes. Case in point: The justices issued an order and a dissent in a Texas voting rights case at 5 a.m. Saturday. Supreme Court reporters stood by all night for the ruling. The holdup apparently was Justice Ruth Bader Ginsburg’s six-page dissent, joined by Justices Elena Kagan and Sonia Sotomayor. The Supreme Court allowed Texas to use its voter ID law in the upcoming election, even though a federal court decided a few weeks ago that Texas’ law violated both the Constitution and the Voting Rights Act, and that Texas engaged in intentional racial discrimination in voting. The trial court had barred Texas from using its law this election, but the U.S. Court of Appeals for the 5th Circuit reversed that decision last week, and the law’s challengers went to the Supreme Court, where, as expected, the court sided with Texas. The Supreme Court’s order was consistent with some of its other recent orders indicating that lower courts should not change the rules of running an election shortly before voting begins. I have dubbed this rule the Purcell Principle, for a 2006 Supreme Court case.
The court had to decide the emergency request quickly — early voting began Monday — but Ginsburg did not need to write her extensive dissent. The week before, when Justices Samuel Alito, Antonin Scalia and Clarence Thomas dissented from a Supreme Court order putting Wisconsin’s voter ID law on hold, their entire dissent was only a few sentences. It was a dissent that disturbingly treated the right to vote as less important than deference to the Court of Appeals judgment, kind of an Anti-Purcell Principle.
Sometimes justices disagree with emergency court orders such as these and do not even bother to write a formal dissent. And recently, the majority has not been explaining its various orders in cases including voting rights, abortion and same-sex marriage, at all.
So why did Ginsburg keep the court and court watchers up all night for a relatively lengthy dissent from an order issued with no majority opinion? There is no way to know from the outside, but my guess is that she wanted to make an important statement about how the Supreme Court should handle these voting cases and to publicly flag where she believes the court is going wrong. Like a rare oral dissent from the bench after a written opinion, this middle-of-the-night dissent calls attention to what Ginsburg probably sees as a grave injustice.