What’s going to happen next week? Is the Trump-stacked Supreme Court going to hand this election to the Republicans? Is democracy doomed?
Here’s my sophisticated, Yale-JD-Supreme Court columnist expert assessment: Probably not.
But maybe. But I doubt it. Let’s game out the possibilities—four of them, to be precise.
1. Blue Wave + Go Away
Obviously, progressives are all traumatized by 2016, when everyone knew Hillary Clinton was going to win and then she didn’t. I get it. Every time I see the poll numbers, I want to knock on wood, spit three times, and say the traditional Yiddish phrase keyn ayn hora to keep away the evil eye.
And yet, the numbers are what they are. And if Biden’s margin is more than three or four percentage points in enough swing states, the Supreme Court will not matter in determining the results of the election.
So then it’s up to Trump. Will he go away in a huff, as he’s said at multiple rallies lately? Maybe he’ll just quit his job and fly to Dubai, where he’ll be safe from extradition. Maybe he’ll milk the presidency for all that it’s worth, booking every Trump property in the world every day in December. Who knows. But it’ll be over.
2. Blue Wave + Stay and Fight
Or maybe he’ll cause a ruckus. Fraud! Rigged! Stolen election! Fill in the blanks as you like.
I’m optimistic, though, if there’s really a Blue Wave. We’ve already seen prominent Republicans like Senator Ben Sasse (R-NE) trying to jump off the Trump Train before it wrecks. That’s weaselly AF, but also good for democracy. If there’s really a blue wave, expect to see a lot more Sasse from the right side of the aisle. Which means that Trump can throw a tantrum, but he’ll be thrown under the bus.
Now, there could still be heinous acts of violence committed by Trump’s white nationalist supporters or his conspiracy nuts who will see anything other than a Trump victory as a malevolent act by corrupt, possibly-sex-trafficking elites. It would only take a sliver of them to make the last two months of 2020 even worse than the preceding ones. We could be in for a very dangerous, nasty time.
But the heinousness won’t be coming from the Supreme Court, if that’s any consolation.
3. Reasonably Clear Biden Victory + Stay and Fight
This one’s more nebulous.
Conceivably, Trump could lose to Biden, but if the margins aren’t wide enough, parts of the Republican establishment and donor base might stand by him, as he, say, refuses to meet with the Biden transition team, or issues blatantly unconstitutional orders, or incites violence and even rebellion among his most rabid followers.
Here, the Court could get involved not in deciding the winner of the election, but in deciding what an outgoing president’s responsibilities are, and in reviewing whatever chaos or self-dealing Trump engages in on his way out the door.
On the subject of deference to President Trump, the Court has a mixed record—now plus the unknowns due to Justice Amy Coney Barrett.
In the Trump taxes cases last July, the Court voted 7-2 that presidents are not immune from subpoenas and investigations. The Court also rejected the Trump administration’s termination of the DACA immigration program because it hadn’t considered the impact of that termination on immigrants. And last year, it rejected Trump’s attempt to add a citizenship question to the census because it was justified by outright lies.
Those decisions suggest that the Court’s conservatives might take an active role in reviewing any lame-duck excesses.
On the other hand, the Roberts Court, even with Justice Ginsburg on it, still affirmed Trump’s “Travel Ban” despite his many promises to ban Muslims; gave Trump officials a pass on defying subpoenas; and had an appalling record on preserving voting rights.
So if Trump loses but has support in his attempts to salt the fields before Biden takes over, what the Court does may depend on the details.
4. Close Biden Victory
OK, but this is the one you should worry about.
If Biden wins by close margins in key swing states, all hell will break loose. As we saw in Bush v. Gore—in which, in case you forgot, Chief Justice Roberts, Justice Kavanaugh, and Justice Barrett were all on Bush’s legal team—there is no limit to what “conservatives” will do to win an election. Champions of states’ rights trampled on states rights. Strict constructionists read laws like deconstructionist grad students. Federalism, judicial restraint, and originalism all went out the window. And outright lies and chicanery were simply ignored (and, in the case of then-Secretary of State Kathryn Harris, rewarded by Republican voters).
And yet, just last week, not only did Justice Kavanaugh go out of his way to praise Bush v. Gore, probably one of the two worst Supreme Court decisions of the last half-century (Citizens United being the other), he misconstrued the holding of the case, saying that the Court unanimously agreed that the Supreme Court can overrule state courts’ interpretations of state election laws. Actually, only three justices agreed with that position, and five justices specifically disagreed with it.
What the hell was Justice Kavanaugh thinking? Unknown.
Even worse, Kavanaugh lip-synched the Trump administration’s baseless, incendiary, and false claims that mail-in ballots are prone to fraud. This is categorically false. But Kavanaugh, in one of the recent cases, still fretted about “the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day.”
That chaos and suspicion is just FUD (Fear, Uncertainty, and Doubt) generated by the Trump-Fox propaganda machine. It’s about as truthful as Trump’s sharpie-edited hurricane map.
There are any number of ways a close election could turn into a nightmare. Mail-in ballots could be contested. Deadlines could be contested (18 states count ballots received after election day as long as they’re postmarked before it). Extensive recounts could be ordered (as in 2000).
Doctrinally, at least four justices—Thomas, Alito, Gorsuch, and Kavanaugh—have written opinions in the last two weeks that show a readiness to wade into messy election questions that the Supreme Court has usually avoided. Add in Justice Barrett, and you’ve got five.
Politically—meaning, will the justices just end up supporting the people who they agree with ideologically—well, that’s what we don’t know. Justice Barrett had a perfect record as a federal judge, voting for the conservative result 100 percent of the time. Justice Kavanaugh has nearly as perfect a record on the Supreme Court. Justice Gorsuch is a little more quixotic. Justice Thomas is somewhere to the right of Ted Nugent.
It’s really, really hard to say. It sure doesn’t look good. If it’s a close election, this could be 2000 all over again.
At the same time, of the three mail-in ballot cases that have been decided recently, two went the way Democrats wanted them to go. That wasn’t because of ideology; Chief Justice Roberts was clear that it was a matter of the specific legal provisions in Pennsylvania and North Carolina. But, call me naïve, I’m not among the doomsayers. These cases were decided on the merits, and I still think there is a good chance that reason, rather than Right-makes-right, will prevail.
Another thing to remember: the main argument of the Trump team is that there’s massive voter fraud going on. But if there’s one thing for sure, it’s that there is no massive voter fraud going on. It’s just a myth. So if ultimately, a case comes down to this question, the facts are still the facts. Count the ballots, recount the ballots, throw out some ballots, make paper airplanes out of ballots—but you’re not going to find widespread fraud because there isn’t any.
Honestly, I’m more worried about how long these cases will take. With each passing day, the Proud Boys and armed thugs like them across the country will be “standing by” less and less. Protests on both sides will grow. Things could get very ugly, very quickly. Justice delayed will mean peace denied.
And of course, these four scenarios don’t include ones in which Trump wins. Because those are indeed too terrifying for me to contemplate without another cocktail.
How likely is each of the four scenarios? You’ll have to ask the pollsters about that. But if you like democracy, hope for a big Biden victory, and hope that Republicans are craven and weaselly enough to save their skins. (Based on recent history, that’s a safe bet.) Anything else is going to be messy.