I was reading an article today which appeared in my “news” feed.  The article presents Justice Clarance Thomas's dissent in dismissing the cases of election rules changing in PA.

 I’m going to pull a bunch of quotes from this article, so here is the link.  Read the article so that you can confirm the context of each of the quotes.


For completeness, here is the link to Justice Thomas’s dissent:


There is a lot to unpack here.  Any Supreme Court decision and any dissenting opinion will be, in and of itself, a lot to process.  Take that heap of homework and wrap it in an article such as this slate piece and it would take a day’s worth of reading to cover all the possible angles.  Certainly there is more here than a single blog post can possibly hope to cover in any comprehensive way.  The Slate piece wanders, ducking and weaving and attempting to force you to accept it by throwing such a flurry of punches that nobody has the time to fully deal with them all.  The piece you are reading now will not attempt to answer every challenge, identify every piece of journalistic malfeasance, or correct all the records.  Instead it is going to try to stick to the main topic at hand and look at how the topic is being presented.

Anybody can write an article.  An article that provides an objective recounting of facts is called “news”.  Compilation of “news” is performed by engaging in an objective process called “journalism”.  An article that provides the thoughts and opinions of the writer is called “an editorial”.  An article that mashes the two together is something else.  A blog post?  A newsitorial?  A steaming pile of words?

The problem is, presenting your opinion as news is dishonest.  Presenting someone else’s opinion as news is dishonest.  In a society which asks its members to participate in the decision making process, dishonesty in the fourth pillar cannot be considered acceptable.  My grievance lies 50% with the author for defiling the noble endeavor of journalism by composing this piece.  It lies 50% with Slate for publishing the piece under the banner of “news”.  It lies 50% with the technology vendor who sold me the phone and whose news aggregation app lists this crap as news and not editorial.

The premise of the article is that Justice Thomas has demonstrated terrible judgement by his dissent in a court opinion.  But therein lies the problem.  Determination of the judgement as terrible is a subjective opinion of the writer, not an objective conclusion supported by facts.

Let’s dive in to this “news” story.

Opening sentence:  “Justice Clarence Thomas is not backing down from the fight to legitimize Donald Trump’s claims that the 2020 election was rife with fraud.”  Ok.  Somewhat shaky ground here.  The fact is that Justice Thomas wrote a dissenting opinion.  The conclusion that the Justice is “not backing down from the fight” is the author’s personal interpretation of the Justice’s reason for doing so, but possibly (probably?) a valid interpretation.  “To legitimize Donald Trump’s claims” starts to wander into murky water.

The aim of the fight could be interpreted a number of ways.  To “legitimize the claims” might be one way.  To “defend the legitimacy” of them is another.  Simple change of wording, but look what happens.  The premise goes from being assumed illegitimate to assumed legitimate.  This completely re-frames whatever comes next.  The purpose of the fight could be framed as to protect or to attack our democracy.  It could be to ensure the integrity of our voting system or to destroy it.  Since it is an interpretation by the observer, it is purely subjective.

Second sentence: “On Monday morning, Thomas issued a startling opinion ranting against the alleged dangers of mail voting and declaring that SCOTUS must override state courts that expand vote by mail pursuant to their state constitutions.”

We’re quite far off the path of journalism now.  The author describes the opinion as “startling” and “ranting”.  The author was startled.  Was everyone startled?  “Startling” is clearly a subjective evaluation. “Ranting” is obviously a loaded word.  It implies that the speaker is unhinged, unbalanced, irrational.  “Rant” implies a disproportionate outburst.  It implies a thoughtlessness unbecoming of a Justice of the Supreme Court.  By the end of the second sentence, the author has told us more about his own views than about the news of the day.

Similarly, “declaring that SCOTUS must override state courts that expand vote by mail pursuant to their state constitutions” is a warped interpretation.  What Justice Thomas argued was that there is a legitimate constitutional argument that the states’ supreme courts had no right to make such changes in the first place.  Such an argument is exactly the purview of the Supreme Court.  Justice Thomas did not claim in his dissenting opinion which way he thought the court should rule on such an issue. He argued that the issue deserved to be heard.  This blatant, intentional misrepresentation of the opinion pulls back the curtain on the author more so than the subject. 

The author of the article goes on to describe the nature of the dispute before the court:

“The state Legislature set a strict deadline for mail voting: Any ballot received after 8 p.m. on Election Day must be thrown out. In September, the Pennsylvania Supreme Court held that, in light of the pandemic and the Postal Service slowdown, this deadline would disenfranchise many voters through no fault of their own. Specifically, the court found that the deadline violated the Pennsylvania Constitution, which requires that all elections be “free and equal.” To safeguard this right, the majority extended the mail ballot deadline by three days.”  Apart from the editorial “many voters, through no fault of their own”, this is actually a pretty even handed recount of the grievance.

The article goes on to describe the dissenting opinion as attempting “to shatter states’ authority to run their own elections”.  In the same paragraph, the author writes: “They asserted that, under the U.S. Constitution, federal courts can override state courts’ interpretation of election codes based on their own sense of what the state legislature prefers.”

What does the actual opinion say about this?  “The Constitution gives to each state legislature authority to determine the “Manner” of federal elections. Art. I, §4, cl. 1; Art. II, §1, cl. 2. Yet both before and after the 2020 election, non-legislative officials in various States took it upon themselves to set the rules instead.”

Well, this is probably going to be a reference to a bunch of legal mumbo jumbo, right?  Probably impossible to comprehend without a law degree?  Actually, no. The Constitution of the United States was written so that a fourth grader could read it.  Consider the First Amendment.  Arguably the most powerful statement of law ever written, it’s a single sentence. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  Not terribly complicated.  Congress shall make now law.  Did Congress make a law?  If yes, disallowed.  If no, maybe consider further.

So, what does the Constitution actually say in the section identified by the dissenters?

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”

Well, actually, that seems pretty straightforward as well.  The rules that govern presidential elections shall be determined by each state’s legislature.  Let’s continue with the opinion:

“Like most States, Pennsylvania has a long history of limiting the use of mail-in ballots. But in October 2019, the Pennsylvania Legislature overhauled its election laws. Relevant here, it gave all voters the option of voting by mail, and it extended the deadline for officials to receive mail ballots by several days to 8 p.m. on election day. 2019 Pa. Leg. Serv. Act 2019–77. Then, in response to COVID–19, the legislature again amended the law but decided not to extend the receipt deadline further. See 2020 Pa. Leg. Serv. Act 2020–12.

Displeased with that decision, the Pennsylvania Democratic Party sued in state court. It argued that the court could extend the deadline through a vague clause in the State Constitution providing, in relevant part, that “[e]lections shall be free and equal.” Art. I, §5. The Pennsylvania Supreme Court agreed. On September 17, it held that this “free and equal” provision enabled the court to extend the deadline three days to accommodate concerns about postal delays.”

So then, the Pennsylvania Supreme Court did not attempt to provide its “interpretation of election codes based on their own sense of what the state legislature prefers”  The Pennsylvania Supreme Court modified the election code.  The question before the court, then, is not “must the supreme court overrule the Pennsylvania court’s interpretation?”  The question before the Supreme Court of the United States is if the Pennsylvania Supreme Court can be granted powers by the state’s constitution that directly conflict with clear language in the US constitution.

The opinion goes on to discuss the precedent in similar issues.  It states that both sides agreed there was grounds for the court to hear the case.  It discusses the reason why, because of the timelines involved, not the merits, the previous case was not heard, and why now that those timelines are no longer an issue, the case warrants hearing.  It talks about other, similar cases, and the fact that due to differing outcomes, this case warranted hearing by the Supreme Court in Justice Thomas’s opinion.

The Slate article refers to the opinion’s views on the “appearance of corruption”, and the importance of “confidence in the election”.  The author has characterized this as a rant.  What the author does not address is the fact that Justice Thomas is citing language from specific previous cases and is providing the cases themselves for reference.  It is a very rare “rant” that comes with a bibliography.  The author does not tackle the previous cases, the source of the language, or the validity or correctness of the opinions from which the language was taken.

The Justice goes on later in the opinion to say: “An election system lacks clear rules when, as here, different officials dispute who has authority to set or change those rules. This kind of dispute brews confusion because voters may not know which rules to follow. Even worse, with more than one system of rules in place, competing candidates might each declare victory under different sets of rules.”

This is clearly what has taken place in the 2020 election.  Different parties each claim, possibly rightly, that they have won based on the set of rules they chose to believe is legitimate under our system of law.  Settling such disputes is precisely the job of the Supreme Court.  Failure to do so for any reason is cowardly and inexcusable.  Justice Thomas is quite correct in pointing out that if this dispute is not settled as a matter of law, the electoral system in our country will be irreparably harmed.

The Slate article carries on, denigrating various justices and promoting the concept of packing the court without examining any alternate views or data.  In fact, when speaking of Justice Thomas’s concerns about fraud, article states: “Thomas drew heavily from a 2012 New York Times article focusing on Florida’s mail voting regime, which focused on a handful of fraudulent schemes involving mail ballots. The justice also pointed to a Republican operative’s criminal attempt to steal an election in North Carolina using mail ballots.”

The article does not discuss or refute these incidents.  Rather it writes them off as isolated and irrelevant. 

In the end, it is perfectly reasonable for the author to provide their own analysis of the Supreme Court’s decision and Justice Thomas’s dissent from that opinion.  It is perfectly reasonable for the author to criticize officials, policies and decisions with which he does not agree.  It is perfectly reasonable for the author to engage in partisan rhetoric.  What is not reasonable is to frame the article as “news”.

The job of the purposeful thinker is, therefore:

  • To identify the issue of the article being editorial, not journalism
  • Based on its heavy editorializing, to evaluate the article in the proper context - A random person’s opinion, not an objective recounting of facts
  • To read the actual dissenting opinion and attempt to understand it for themselves
  • To look for the relevant information outside of the article and the opinion
      • The relevant text of the Constitution of the United States
      • The New York Times article on mail-in voting
      • The North Carolina fraud case, and
      • Any other cases cited
  • To identify the real question at hand - in this case, the question being discussed is not if the court should rule one way or the other, but should the court hear the case at all
  • To come to a conclusion about the question at hand, and finally
  • Come to a conclusion about this author, website, and news aggregation service as sources of factual journalism and apply that conclusion as a filter going forward