[EL] U.S. Supreme Court denies a stay of Pa. Supreme Court's extension on vote by mail ballots

[Mark Scarberry]

Actually, I would bet a substantial sum that she would refuse to break the
tie in favor of granting a stay. Institutional concerns would lead her that
way, and the procedural posture permits a stay to be denied without setting
any precedent. Even instrumentally, a vote against the grant of the stay
would make it likely that the Democrats would not pack the Court, which
would preserve a 6-3 majority on other matters.

Her ideal move would be to write the opinion denying the stay.

Mark



[image: Pepperdine wordmark]*Caruso School of Law*

*Mark S. Scarberry*

*Professor of Lawmark.scarberry at pepperdine.edu
<mark.scarberry at pepperdine.edu>*
Personal: mark.scarberry at gmail.com




On Mon, Oct 19, 2020 at 4:57 PM Fredric Woocher <fwoocher at strumwooch.com>
wrote:

> Seriously, Mark, you believe there is some doubt about how a Justice
> Barrett would rule on this case?
>
>
>
> FDW
>
>
>
> *From:* Law-election [mailto:law-election-bounces at department-lists.uci.edu]
> *On Behalf Of *Mark Scarberry
> *Sent:* Monday, October 19, 2020 4:49 PM
> *To:* Election Law Listserv <law-election at uci.edu>
> *Subject:* Re: [EL] U.S. Supreme Court denies a stay of Pa. Supreme
> Court's extension on vote by mail ballots
>
>
>
> Thanks, Pam.
>
>
>
> If/when Judge Barrett joins the Court, will this be revisited? Which way
> would she go? (That's a serious question; whatever her views on the merits,
> she would, I think, consider the institutional interests of the Court and
> the broader concerns for the nation. A stay need not be granted even if
> there is a likelihood that the GOP ultimately would prevail. Among other
> matters, the public interest is a factor.) Or would she recuse herself? If
> she tips it 5-4 against the extension, and if Democrats take power,
> court-packing almost certainly would result.
>
>
>
> Mark
>
>
>
> [image: Pepperdine wordmark]
>
> *Caruso School of Law*
>
>
> * Mark S. Scarberry*
>
>
> *Professor of Law **mark.scarberry at pepperdine.edu
> <mark.scarberry at pepperdine.edu>*
>
> Personal: mark.scarberry at gmail.com
>
>
>
>
>
>
>
>
>
> On Mon, Oct 19, 2020 at 4:36 PM Pamela S Karlan <pkarlan at stanford.edu>
> wrote:
>
> 4-4.  No opinions.
>
>
>
> https://www.supremecourt.gov/orders/courtorders/101920zr1_ebfi.pdf
>
>
>
> Pamela S. Karlan
>
> Kenneth and Harle Montgomery Professor of Public Interest Law
>
> Co-Director, Supreme Court Litigation Clinic
>
> Stanford Law School
>
> karlan at stanford.edu
>
> 650-725-4851
>
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