Mark Joseph Stern, who covers the judiciary for the increasingly shrill Slate, has spent the last several days melting down over a concurring opinion written by Justice Kavanaugh in a Wisconsin elections case. Ed Whelan has offered not one, not two, but three helpful explainers on the decision and its critics. The bottom line is that Kavanaugh believes that, as Whelan puts it, “the Constitution limits intrusions by both federal and state judges on state election statutes.” Stern concurs with Rick Hasen that this is “something to panic about,” and panic he has. For Stern, this mainstream view constitutes “a radical theory to greenlight—or mandate—voter suppression.” He maintains that Kavanaugh’s opinion was meant to send an ominous message to lower courts: “Uphold voter suppression at all costs, even if you have to ignore or contort the factual record to do it.”
But then on Wednesday, just two days after Kavanaugh began his jihad against the ballot box, he sided with Chief Justice Roberts and the living-constitutionalist bloc on a North Carolina elections case (we are regrettably not all originalists, despite Justice Kagan’s claims otherwise). There will be no retractions from Stern, though, no acknowledgment that he may have overreacted, and no hesitation before he throws his next tantrum.