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

[Mark Scarberry]

Thank you, Rick. I had a hard time treating your comment simply as snark,
but I appreciate and accept the apology.

This is an extraordinarily difficult time in many respects, especially for
those who think the Supreme Court is engaged in voter suppression. I think
the issues are more complex than you and others seem to believe, but I can
understand how deeply you must feel about what is happening.

I believe that Judge Barrett is a decent human being who will find a way to
avoid delegitimizing the Court and throwing the nation into even more
peril. I think that was implicit in Larry's post about court-packing.
Barrett has a particular responsibility in that regard (different from that
of the four existing justices who voted to grant a stay) given the
circumstances of her nomination and the quick confirmation that is almost a
certainty. She may not admit it, but I imagine she has read Alexander
Bickel.

We need to extend grace to each other.

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 5:45 PM Rick Hasen <rhasen at law.uci.edu> wrote:

> Mark,
>
> I apologize. That was snarky and I regret how I expressed myself. I do
> believe it is extremely unlikely that a Justice Barrett would behave the
> way you suggest, but that’s no excuse for writing  my response in that way.
>
> Rick
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> *From: *Mark Scarberry <mark.scarberry at pepperdine.edu>
> *Date: *Monday, October 19, 2020 at 5:35 PM
> *To: *Rick Hasen <rhasen at law.uci.edu>, Marty Lederman <
> Martin.Lederman at law.georgetown.edu>
> *Cc: *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
>
>
>
> No, and I find the comment offensive.
>
>
>
> Prof. Mark S. Scarberry
>
> Pepperdine University
>
> Rick J. Caruso School of Law
> ------------------------------
>
> *From:* Rick Hasen <rhasen at law.uci.edu>
> *Sent:* Monday, October 19, 2020 5:26:22 PM
> *To:* Mark Scarberry <mark.scarberry at pepperdine.edu>; Marty Lederman <
> Martin.Lederman at law.georgetown.edu>
> *Cc:* 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
>
>
>
> Is this fan fiction?
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>
> *From: *Law-election <law-election-bounces at department-lists.uci.edu> on
> behalf of Mark Scarberry <mark.scarberry at pepperdine.edu>
> *Date: *Monday, October 19, 2020 at 5:26 PM
> *To: *Marty Lederman <Martin.Lederman at law.georgetown.edu>
> *Cc: *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
>
>
>
> And then she cites Purcell to preserve the Court, limit damage to the
> country,and avoid setting a precedent.
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>
> Mark
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>
> Prof. Mark S. Scarberry
>
> Pepperdine University
>
> Rick J. Caruso School of Law
> ------------------------------
>
> *From:* Marty Lederman <Martin.Lederman at law.georgetown.edu>
> *Sent:* Monday, October 19, 2020 5:16:33 PM
> *To:* Mark Scarberry <mark.scarberry at pepperdine.edu>
> *Cc:* Election Law Listserv <law-election at uci.edu>; Fredric Woocher <
> fwoocher at strumwooch.com>
> *Subject:* Re: [EL] U.S. Supreme Court denies a stay of Pa. Supreme
> Court's extension on vote by mail ballots
>
>
>
> Once she gets there it won’t be about a stay: it’ll be about the merits,
> and thus, very possibly, whether (tens/hundreds of?) thousands of ballots
> should be thrown out.
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> On Mon, Oct 19, 2020 at 8:13 PM Mark Scarberry <
> mark.scarberry at pepperdine.edu> wrote:
>
> 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.
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> Her ideal move would be to write the opinion denying the stay.
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> Mark
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> *Error! Filename not specified.*
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> *Caruso School of Law*
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> * Mark S. Scarberry*
>
>
> *Professor of Law **mark.scarberry at pepperdine.edu
> <mark.scarberry at pepperdine.edu>*
>
> Personal: mark.scarberry at gmail.com
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> On Mon, Oct 19, 2020 at 4:57 PM Fredric Woocher <fwoocher at strumwooch.com>
> wrote:
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> Seriously, Mark, you believe there is some doubt about how a Justice
> Barrett would rule on this case?
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> FDW
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> *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
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> Thanks, Pam.
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> 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.
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> Mark
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> *Caruso School of Law*
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> * Mark S. Scarberry*
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> *Professor of Law **mark.scarberry at pepperdine.edu
> <mark.scarberry at pepperdine.edu>*
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>
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> Personal:
>
> mark.scarberry at gmail.com
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> On Mon, Oct 19, 2020 at 4:36 PM Pamela S Karlan <pkarlan at stanford.edu>
> wrote:
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> 4-4.  No opinions.
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> https://www.supremecourt.gov/orders/courtorders/101920zr1_ebfi.pdf
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> Pamela S. Karlan
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> Kenneth and Harle Montgomery Professor of Public Interest Law
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> Co-Director, Supreme Court Litigation Clinic
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>
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> Stanford Law School
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> karlan at stanford.edu
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> 650-725-4851
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> _______________________________________________
>
>
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> --
>
> Marty Lederman
>
> Georgetown University Law Center
>
> 600 New Jersey Avenue, NW
>
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>
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