Democratic senators should have refused to participate in the absurdly rushed effort to pack Amy Coney Barrett on to the Supreme Court in the midst of the election, instead of giving Republicans’ partisan power play the veneer of legitimacy.
But that ship has sailed and now, with Justice Barrett officially on the court, a new potential challenge to the Constitution looms as the GOP is banking on its newly super-packed Supreme Court majority to reinstall Trump in the White House if he stands to suffer a narrow loss in one or more swing states.
Now voters, and Joe Biden, may have to decide whether to accept an effort by the Supreme Court to decide who will sit in the White House in 2021 by preventing all duly cast ballots from being counted. Trump’s second Supreme Court appointee, Brett Kavanaugh, openly threatened to do just that on Monday, even as Trump’s last minute addition to the court, Amy Coney Barrett, headlined another White House superspreader event to celebrate her mid-election installation and provide Trump with campaign propaganda in the process.
We’ve been here before—just ask Al Gore. Joe Biden and his Democratic Party must make clear, now, that they will not let the court’s conservatives steal a second presidential election for the Republican Party. Voters should make it crystal clear that the nation will not accept a second attempt to undermine the electoral process, and with it our democracy.
On Dec. 8, 2000, the Supreme Court’s then five-justice right-wing majority directed Florida to stop a state-wide recount of certain ballots ordered by the Florida Supreme Court in the face of the razor-thin outcome of that state’s vote in the presidential election voting, which was to be determinative of the outcome in the Electoral College. On Dec. 12, the same right-wing majority issued a decision effectively handing the election to George W. Bush by effectively barring the completion of the recount, thereby preventing the nation from learning which candidate had actually received the most votes.
The reasoning of the majority in Bush v. Gore was so embarrassingly flimsy, and transparently partisan, that the opinion openly cautioned lower courts to avoid relying upon it in future cases. This, they said, was a one-off.
Many questioned why Al Gore accepted—and urged voters to go along with—the literally anti-democratic outcome decreed by the court. Yet, by the time the justices had taken it upon themselves to hand the presidency to their favored candidate it was too late; by having chosen to participate in the Supreme Court litigation, Gore had conceded that the five right wing justices had the power to decide the election, even if it meant preventing all of the votes from being counted.
In fact, Gore’s decision to actively participate in the Supreme Court challenge to the counting of votes in Florida had been reasonable, under the circumstances. At the time, few could have anticipated that a majority of the Supreme Court’s justices, whatever their political preferences, would ultimately choose to use their unelected positions to undermine democracy so brazenly, and thereby risk undermining the legitimacy of the court itself in the process. But, having gotten away with their audacious gambit in 2000, undermining elections and suppressing votes has since become ever more integral to the GOP playbook for retaining power as the party’s voter base ages and shrinks.
Indeed, the packed Supreme Court, and lower federal appellate courts, have proven to be key to that strategy, including in recent weeks as they have ruled in favor of GOP vote-suppression strategies with ever greater frequency.
Thus, unlike in 2000, if the Supreme Court gets a hold of a contested election, there is little doubt what it will do. There is now every sign that the GOP is planning for a Bush v. Gore sequel with a starring role for Justice Amy Coney Barrett, whom Trump has openly entreated to stand ready to intervene on his behalf.
Indeed, four of the five members of the court’s pre-Barrett five-member reactionary majority have already more than hinted that they are poised to do just that. Last week, the court came one vote short of imposing an emergency stay upon a Pennsylvania Supreme Court ruling upholding the right of voters to have ballots postmarked by election day, but received by Nov. 6, counted. The Pennsylvania state court decision was grounded in the Pennsylvania state constitution, and it is well-established that a state’s highest court—not the U.S. Supreme Court—is the last word on interpreting that state’s constitution and laws.
The background for the decision is a novel, and frankly absurd, argument being advanced by the GOP (and vaguely adverted to by Justice Rehnquist in an opinion in Bush v. Gore that was adopted by only three justices) that, because the U.S. Constitution states that state “Legislature[s]” determine “Times, Places, and Manner” of federal elections, state courts are implicitly barred from interpreting state constitutions in ways that vary from the literal meaning of those laws, including to favor voter access to the polls. Conservatives claim to favor interpreting the Constitution in conformity with its original understanding, and there is no reason to believe that the Framers meant to cut state courts out of the business of interpreting state election laws by using the term “legislature” in this way.
The Supreme Court’s 4-4 vote against a stay of the Pennsylvania Supreme Court decision was not accompanied by an explanation. Nonetheless, simply by means of their votes, four members of the court appear to have signaled their sympathy to the GOP argument, and while the court denied an emergency stay, it remains free to take up the case again. Indeed, their separate concurrences in a decision issued on Monday night voiding an extension on the time to receive mail ballots in Wisconsin, Justices Kavanaugh and Gorsuch expressly adopted this radical theory, with Kavanaugh stating that “a state court may not depart from the state election code enacted by the legislature.”
Furthermore, there is every reason to expect that newly minted Justice Barrett is poised to join the four other most right-wing justices’ position, potentially by ordering Pennsylvania not to count absentee ballots received after election day (which are highly likely to favor Biden), even though doing so will violate the state’s constitution. Indeed, in anticipation of the new justice favoring its position, the GOP has already filed a new set of papers asking the court to take up the merits of the Pennsylvania case before election day.
Those hoping for a resuscitation of the challenge to the Pennsylvania court decision had reason to be heartened by Monday night’s Supreme Court ruling, which rejected a trial court order requiring Wisconsin to count ballots mailed by election day, but received within six days thereafter. In his opinion justifying the Supreme Court’s action, Kavanaugh adopted Trump’s mendacious rhetoric about the purportedly inherently suspicious nature of mail ballots, referring to the “chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election.” Yet, as Justice Kagan stated in dissent, “there are no results to ‘flip’ until all valid votes are counted”, and there is nothing “chaotic” or “suspicious” about counting all ballots executed and mailed before election day.
The possible revisiting of the Pennsylvania case, which has implications for the potential counting of late-received ballots in other states, is only one of several gambits the GOP might attempt to reinstall Trump before a ready and waiting, right-wing Supreme Court majority, if the opportunity presents itself.
So then what can the majority of the voting public, the majority of which is almost certain (once again) to vote against Trump, do to prevent another such blatant undermining of democracy? Some of the potentially necessary steps are obvious, and untroubling; others may be more difficult to accept, but could nonetheless prove essential to the preservation of the nation’s democracy.
First, and most importantly, Democratic voters need to vote in sufficient numbers not only to win, but to win decisively, in swing states. The millions of dollars that the GOP has been spending in pre-election vote suppression litigation has not only been focused on winning the election for Trump, which appears to be highly unlikely in states like Pennsylvania and Wisconsin at this point, given Trump’s position in the polls, but also to keep the margins of a Biden win as tight as possible. This is because it will only be possible for the GOP to move the election into the courts if, as in 2000, the vote count is very close in one or more states that can determine the outcome in the Electoral College.
Accordingly, as Greg Sargent has observed, the GOP hopes of undermining democracy in the courts “could end with a relative whimper” if the vote count, particularly the early reported count, is decisively in Biden’s favor—a result that appears to be increasingly likely (albeit not certain).
Second, people must be prepared to take to the streets to make clear that another judicial attempt to undermine democracy will simply not be accepted by the majority of the nation’s citizens.
It is possible that, after election day, we have a contest that Biden on the road to winning once all the votes are counted, including those cast by mail but not yet counted in a state like Pennsylvania. Under those circumstances, the GOP may make their play for a Supreme Court intervention, in the form of a preemptive stay that threatens to void all or part of the vote count, like the stay Bush obtained in 2000.
In the face of such GOP entreaties to the court, citizens will need to take to the streets in massive numbers to demand that every vote be counted, and make clear that a repeat of the judicial intervention to thwart democracy will neither be tolerated nor accepted.
If the court receives a strong message that another attempt to install an unelected president in office not only stands unaccepted by the majority of citizens, but also that the court’s legitimacy and authority could be heavily damaged in the process, some members of the court’s reactionary majority may choose to step back from the brink and refuse to intervene in a presidential election again.
Finally, if the court’s majority does make the reckless choice to take up a GOP attempt to undermine the vote count, Joe Biden will have a potentially momentous decision to make: whether to accept the court’s authority to do so. He should not.
If the court takes up a GOP challenge to counting potentially decisive votes after the election in a swing state, Biden should refuse to participate in the litigation, thereby definitively challenging the authority and the legitimacy of the court in taking it upon itself to select the president.
Critics may argue that, by taking such a dramatic step, Biden could lose his chance of prevailing before the Supreme Court.
Yet, unlike in 2000, if the court accepts a case that could end up determining the outcome of the election, there is little basis for doubt regarding the likely outcome. If five or six of the court’s right-wing justices choose to cause the court to intervene, they will almost certainly ultimately also vote in favor of reinstalling Trump, no matter how tenuous the legal rationale that may be required to reach that result. Accordingly, Biden will not be foregoing much of anything by refusing to participate.
Others will argue that a choice by Biden to directly challenge the Supreme Court’s authority will instigate a constitutional crisis. Yet that gets the situation backwards; it is the GOP and the Supreme Court’s reactionary justices that have brought the nation to the brink of such a crisis, and it will take the nation over the edge if they attempt to install yet another president who may not have won the election.
Therefore, a decision by Biden not to accept a Supreme Court intervention to frustrate the counting of citizens’ votes would not undermine the constitutional order. To the contrary, it would avoid placing an unearned veneer of legitimacy upon an improper challenge to democracy, thus avoiding a repeat of Democratic senators’ erroneous decision to participate in the Coney Barrett confirmation hearings, which gave that court-packing exercise an equally undeserved appearance of regularity.
Indeed, defying the Supreme Court’s gerrymandered right-wing majority, and refusing to recognize its authority to reinstall Trump, could ultimately prove to be the only means of preserving our democracy.