Explaining the need to swiftly replace the late Supreme Court Justice Ruth Bader Ginsburg with Amy Coney Barrett this fall, Donald Trump said the Court likely would have to rule on disputes about the presidential election. “I think this will end up in the Supreme Court,” he told reporters on September 23. “And I think it’s very important that we have nine justices….This scam that the Democrats are pulling…will be before the United States Supreme Court. And I think having a 4–4 situation is not a good situation, if you get that. I don’t know that you’d get that. I think it should be 8–nothing or 9–nothing. But just in case it would be more political than it should be, I think it’s very important to have a ninth justice.”
In Trump’s view, a ruling against his campaign would be “more political than it should be,” while a ruling in which Barrett voted the way the president who picked her wanted her to vote would be untainted by politics. That counterintuitive view looked even more dubious after Barrett’s confirmation, when Trump warned the justices that siding with Biden in a post-election case would threaten their status and power. “If Sleepy Joe Biden is actually elected President,” he tweeted, “the 4 Justices (plus1) that helped make such a ridiculous win possible would be relegated to sitting on not only a heavily PACKED COURT, but probably a REVOLVING COURT as well.”
Trump thought Barrett should dance with the one that brought her. But in case that argument was not persuasive enough, he argued that it was in her personal and professional interest to prevent Biden from taking office. In the end, however, Barrett joined the rest of the Court, including Trump’s two other nominees and three justices appointed by Republicans George H.W. Bush and George W. Bush, in declining to hear two cases that sought to overturn Biden’s victory.
Trump seems genuinely dismayed by those outcomes. “The fact that the Supreme Court wouldn’t find standing in an original jurisdiction matter between multiple states, and including the President of the States, is absurd,” he tweeted after the justices turned away Texas Attorney General Ken Paxton’s challenge to the election results in four swing states. “They just ‘chickened out’ and didn’t want to rule on the merits of the case. So bad for our Country!”
Yesterday Trump upped the ante, saying the justices—including the three that he appointed—are “totally incompetent and weak” as well as chicken-hearted. “We have absolute PROOF” of “massive Election Fraud,” he said, “but they don’t want to see it…No ‘standing,’ they say. If we have corrupt elections, we have no country!”
Trump’s complaint that the justices won’t even consider his “absolute PROOF” implies that they would have been compelled to side with him if only they had taken up Paxton’s case and/or the lawsuit in which Rep. Mike Kelly (R–Pa.) sought to overturn Pennsylvania’s election results. But if the justices (again, including the ones Trump himself picked) are as cowardly, weak, and incompetent as Trump portrays them, what would have stopped them from rejecting these lawsuits on the merits?
In any case, Trump’s implication that he and his allies never really got a chance to present their arguments or evidence is, like nearly everything else he says about the election, demonstrably untrue. The day after the Supreme Court decided not to hear Paxton’s case, a Trump-appointed judge in Wisconsin, one of the states Paxton sued, rejected a Trump campaign lawsuit that made essentially the same arguments about Wisconsin’s election procedures. The campaign’s claims, U.S. District Judge Brett Ludwig said, “fail as a matter of law and fact.”
The Pennsylvania case likewise was based on arguments that a federal judge and the U.S. Court of Appeals for the 3rd Circuit rejected when the Trump campaign made them. Both decisions were scathing.
“Plaintiffs ask this Court to disenfranchise almost seven million voters,” U.S. District Judge Matthew Brann, whom Sen. Pat Toomey (R–Pa.) described as “a longtime conservative Republican whom I know to be a fair and unbiased jurist,” wrote last month. “This Court has been unable to find any case in which a plaintiff has sought such a drastic remedy in the contest of an election, in terms of the sheer volume of votes asked to be invalidated. One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption, such that this Court would have no option but to regrettably grant the proposed injunctive relief despite the impact it would have on such a large group of citizens.” Instead, Brann said, “this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence.”
The 3rd Circuit opinion upholding Brann’s decision was written by Stephanos Bibas, a Trump nominee, and joined by two George W. Bush appointees. “The Campaign cannot win this lawsuit,” they said. “The Campaign’s claims have no merit.”
The Nevada Supreme Court’s treatment of the Trump campaign’s claims provides another instructive example. That court currently consists of six justices who were selected in nonpartisan elections and one who was appointed by a Republican governor. The elected justices include several who were appointed to lower courts by Republicans. Yet in a December 8 ruling, the six justices who participated in the case unanimously upheld Carson City District Judge James Russell’s dismissal of a Trump campaign lawsuit seeking to overturn Nevada’s election results.
Russell considered the campaign’s “absolute PROOF” of rampant election fraud and was decidedly unimpressed. “The district court’s order thoroughly addressed the grounds asserted in the statement of contest filed by appellants and considered the evidence offered by appellants even when that evidence did not meet the requirements under Nevada law for expert testimony…or for admissibility,” the Nevada Supreme Court said. “Despite our earlier order asking appellants to identify specific findings with which they take issue, appellants have not pointed to any unsupported factual findings, and we have identified none.”
Decisions like these, combined with the Supreme Court’s rejection of the two pro-Trump lawsuits it was asked to consider, clearly show that both Trump and many of his opponents were mistaken in thinking that jurists chosen by Republicans could be expected to rule in his favor, regardless of how weak his arguments and evidence were. Trump, who has no principles beyond his own personal interests, does not know what to make of this. Since he can’t very well charge all these Republican nominees with partisan bias, he resorts to accusing them of cowardice and incompetence.
There is another possible explanation, of course. Maybe state and federal judges, regardless of their political backgrounds or partisan preferences, are doing the jobs they are supposed to do, rejecting legal arguments and evidence that do not hold water. All but one of the 60 or so election lawsuits filed by the Trump campaign have failed to make headway. According to a tally by The New York Times, more than two-thirds of them did not even allege actual voting fraud, instead challenging election procedures that Trump thinks were illegal, unconstitutional, or careless. “In nearly a dozen cases,” the Times reports, the campaign’s allegations of fraud “did indeed have their days in court” and “consistently collapsed under scrutiny.”
Given that reality, Trump is not just arguing that the 2020 presidential election was perverted by massive fraud; he is also implying that the judicial system is thoroughly corrupt, rejecting compelling arguments and persuasive evidence for no valid legal reason. “It is historically mathematically, politically, and logically impossible” that Biden won the election, Trump insists in a video he posted on Facebook last week. “We won this election by a magnificent landslide, and the people of the United States know it.” He says he is “determined to pursue every legal and constitutional option available to stop the theft of the presidential election.”
There are not many such options left. Leaving aside fanciful ideas like seizing voting machines, appointing conspiracy monger Sidney Powell to investigate her own wild charges of election fraud, and deploying the military to force a rerun of the election in battleground states, the only big play remaining for Trump is challenging electoral votes when they are officially tallied by Congress on January 6. Even if the Trump allies pursuing that strategy in the House manage to get a senator’s support, which is required to force a vote, the outcome is a foregone conclusion, since Democrats control the House and at least a third of Republican senators have conceded Biden’s victory.
It is impossible to imagine that Trump, having exhausted “every legal and constitutional option,” will suddenly admit that he lost the election. Instead he will continue to loudly decry an electoral system that was blatantly rigged against him, a judicial branch that cannot be trusted to reveal the truth, Justice Department officials who were shockingly incurious about the greatest crime in U.S. history, journalists (including many who work for Trump-friendly news outlets) who are either blinded by their hatred of him or ready to abdicate their professional responsibilities for mysterious reasons, and Republican politicians who either abetted election fraud or prematurely threw in the towel despite the supposedly overwhelming evidence that has impressed no one but the most dedicated Trump fans.
In Trump’s view, nearly everyone and everything, including all of the institutions that are supposed to discover and correct the sort of unprecedented criminal activity he alleges, are conspiring against him. This is the world in which Trump demands that his supporters live. And if they do not accept this preposterous tale, he says, “we have no country!”
Unlike Trump, I have no doubt that we will continue to have a country even when Joe Biden takes office on January 20. But it will be an even angrier, more divided, and less rational country than the one Trump was elected to govern four years ago, which may be his most remarkable accomplishment.
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