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Reassignment of Supreme Court justices won’t affect election results
If Your Time is short
• On Nov. 20, the Supreme Court assigned its justices new U.S. Court of Appeals circuits to oversee.
• In their capacity as circuit justices, individual justices are empowered to take only temporary actions. It is extremely unlikely that a justice would unilaterally issue relief on a major election case.
• The challenges pending in federal court don’t involve enough ballots to affect the outcome of the 2020 election.
On Nov. 20, the Supreme Court assigned new U.S. Court of Appeals circuits to its justices. Under the new arrangement, the four justices perceived to be the most conservative will oversee circuits where the Trump campaign has filed lawsuits to contest the results of the election.
For example, Brett Kavanaugh now oversees the circuit that includes Michigan, Amy Coney Barrett oversees Wisconsin, Samuel Alito oversees Pennsylvania and Clarence Thomas oversees Georgia.
Conservative media outlets and social media users seized on the news, suggesting that the new assignments could help President Donald Trump overturn the results of the 2020 election election.
"Supreme Court Shakes Up 2020 Election, Assigns Conservatives To Swing State Circuit Courts," reads the headline of an article published in the GOP Daily Brief.
However, experts we spoke with told us that these posts and articles misunderstand how the federal court system works.
"The claim that this realignment was done in order to influence the election — or the notion that it will have that impact — doesn’t really reflect reality," said Justin Levitt, a law professor at Loyola Law School.
The U.S. Court of Appeals is organized into 13 circuits — 12 regional ones plus the federal circuit. Each of the circuit courts is assigned to a Supreme Court justice based on his or her familiarity with the region, often from having lived or worked there in the past. One of the primary roles of the overseeing justice is filtering out cases eligible to be heard before the Supreme Court.
But their powers over the appellate courts are limited. In their capacity as circuit justices, individual justices are empowered by statute to take only discrete, temporary actions on lower-court decisions.
For example, the justices can extend the deadline to file a document or, in rare cases, issue an emergency stay on a lower-court decision until the rest of the Supreme Court has the opportunity to weigh in. An election challenge that could overturn the outcome of a vote would not be handled unilaterally.
"A circuit justice would be extremely unlikely to grant relief on his or her own in an election-related case," said Michael Morley, assistant professor at Florida State University College of Law. "If the circuit justice thought there was a potentially substantial claim, he or she would refer the request to the full Supreme Court. And even if a circuit justice did act unilaterally, the full court could overrule that ruling."
There is no evidence to suggest that the Supreme Court issued new circuit court assignments to "shake up" the 2020 election.
Circuit courts are reassigned whenever a new justice is appointed, and the latest reassignments came less than a month after Barrett, the newest justice, was sworn in.
The Supreme Court typically assigns justices to locations they are familiar with. The recent reassignment follows this logic, said Tara Leigh Grove, a legal scholar at the Alabama University School of Law. For example, Barrett is overseeing the 7th Circuit Court of Appeals, where she was a judge before joining the Supreme Court.
In addition, neither Alito nor Thomas moved circuits under the arrangement. Alito was overseeing Pennsylvania, and Thomas was overseeing Georgia before Barrett’s confirmation.
"Anybody who thinks that there was any political motivation to the reassignments is completely wrong," Grove said.
Former Vice President Joe Biden won the election, carrying enough states to secure 306 electoral votes. But the Trump campaign has challenged the outcome in several battleground states that helped put Biden over the top.
The reassignment of conservative Supreme Court justices won’t have an impact on the outcome of election challenges, because the bulk of post-election litigation takes place in state courts, said Rebecca Green, a law professor and co-director of the Election Law Program at William & Mary Law School.
During post-election litigation, federal courts weigh in only on questions that concern claims about federal statutes or the U.S. Constitution.
For example, Bush v. Gore — the controversial Supreme Court decision in a Florida recount dispute that decided the 2000 presidential election — involved the Constitution’s equal protection clause and a federal law called the Electoral Count Act. Without a federal question, the higher courts lack jurisdiction.
The Trump campaign has pursued several federal claims in court. But in all of these cases so far, the number of ballots under challenge isn’t enough to change the election outcome, Green explained.
"This is not a Bush v. Gore election, where the margin was 537 votes," she said.
Finally, Green said, both federal and state courts have set a "clear pattern" for post-election lawsuits this cycle: "Claims that lack grounded legal arguments and supporting evidence do not proceed … irrespective of the perceived political leanings of the judges who have heard these claims."
In other words, the ideology of the judges is unlikely to affect the outcome of a lawsuit if it lacks merit and evidence. On Nov. 27, three Republican-appointed federal appeals court judges threw out a Trump campaign lawsuit in Pennsylvania for lack of evidence.
An article claims that the Supreme Court is shaking up the 2020 election by assigning conservatives to swing-state circuit courts.
The Supreme Court did reassign some justices, but it’s misleading to claim that this will affect the election outcome.
Circuit courts are routinely reassigned when a new justice joins the Supreme Court, and an assignment is often based on a justice’s familiarity with a certain circuit or region, not political ideology.
Law professors told us that individual justices would have limited power to unilaterally overturn the election outcome in any state in their assigned circuit. And there are too few ballots being challenged in federal court to affect the outcome of the election.
We rate this claim Mostly False.
Email interview with Justin Levitt, law professor at Loyola Law School, Nov. 30, 2020
Email interview with Rebecca Green, Professor of the Practice of Law and Co-Director of the Election Law Program at William & Mary Law School, Nov. 30, 2020
Email interview with John Vile, professor of political science and dean of the University Honors College at Middle Tennessee State University, Nov. 30, 2020
Email interview with Michael Morley, assistant professor at Florida State University College of Law, Nov. 30, 2020
GOP Daily Brief, It’s Not Over Yet, Folks – Supreme Court Shakes Up 2020 Election, Assigns Conservatives To Swing State Circuit Courts, Nov. 23, 2020
The Guardian, Federal appeals court throws out Trump election lawsuit in Pennsylvania, Nov. 28, 2020
Interview with Tara Leigh Grove, Charles E. Tweedy, Jr. Endowed Chairholder in Law at the Alabama University School of Law, Nov. 30, 2020
SCOTUSblog, Court issues new circuit assignments, Nov. 20, 2020
Supreme Court, A REPORTER’S GUIDE TO APPLICATIONS Pending Before The Supreme Court of the United States
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Reassignment of Supreme Court justices won’t affect election results
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