December 13: In rejecting President Donald Trump’s call to overturn the US election outcome, the Supreme Court sent a message about its role in the American system of government: We do law here, not partisan politics.
With a brief, lawyerly order on Friday evening, the court effectively killed any chance that Trump and his allies would succeed in using baseless claims of widespread fraud to reverse Joe Biden’s victory. The order, which rejected Texas’s attempt to nullify the results in four other states, followed a similarly abrupt rebuff Tuesday of a challenge to Biden’s win in Pennsylvania, Bloomberg reported.
For a conservative court that’s been in the political crosshairs lately, the cases were a chance to bolster its credibility and distance itself from the Republican Party agenda. Trump had predicted for months that the court — and the three members he appointed — would back him in any election dispute.
“The court’s order was unequivocal and puts to rest, in the minds of anyone sane, that the election was not ‘stolen’ and that Joe Biden is our next president,” said Neal Katyal, who served as President Barack Obama’s top Supreme Court lawyer. “There has been a lot of partisan sniping about the court, and a decision like this reminds folks that the court sits to resolve issues of law, not politics.”
The Texas order rejected calls by Trump, 18 GOP-controlled states, and 126 House Republican lawmakers. The decision predictably drew the wrath of the president, who vowed in a series of tweets and on Fox News to continue his fight, claiming without substantiation that he had “proven” his case. “No, it’s not over,” he told “Fox and Friends” in an interview taped on Saturday.
“No judge has had the courage, including the Supreme Court — I am so disappointed in them. No judge, including the Supreme Court of the United States, has had the courage to allow it to be heard,” Trump said. The president and his allies have lost dozens of suits.
Trump continued to call the election “rigged” and said he worries about the country “having an illegitimate president” in Biden.
The court’s action clears the way for the Electoral College to meet in 50 states and the District of Columbia on Monday, leaving no further path for Trump to challenge the election outcome.
Only a few months ago, as the Senate rushed to confirm Trump’s nomination of Amy Coney Barrett to fill the vacancy created when Justice Ruth Bader Ginsburg died, many Democrats were clamoring to add additional Supreme Court seats.
Those calls may still pick up steam down the road. But for now, the court may have given itself at least a bit of cover from the nation’s partisan wars.
Friday’s order didn’t go as far as some as hoped. Chief Justice John Roberts and his colleagues passed on the opportunity to issue what might have been a historic opinion about U.S. democracy and the rule of law.
“The justices were decisive in completely rejecting Texas’s right to bring this case in one sentence,” Scotusblog founder and Supreme Court lawyer Tom Goldstein said. “But a more complete ruling that reaffirmed the election’s validity would have been much better for the country.”
Thomas and Alito
Why that didn’t happen may not be known for years. The court includes stalwart conservatives, among them Justice Clarence Thomas, whose wife is an outspoken Trump supporter. It’s possible anything more than the briefest of orders would have fractured the court’s largely united front.
Thomas and Justice Samuel Alito issued a statement that somewhat muddled the court’s message. Pointing to their longstanding position that states should have an unfettered right to sue one another directly at the Supreme Court — regardless of the merits — they said they would have at least let Texas file its suit.
“It’s very, very unfortunate that two justices didn’t find it within them to speak with a single voice on this very, very obviously flawed lawsuit,” said Kimberly Wehle, a University of Baltimore law professor whose focuses include the constitutional separation of powers.
But Thomas and Alito also said they would reject Texas’s request to stop the four pivotal states from casting their votes for Biden when the Electoral College meets. Indeed, no justice said he or she would have blocked those votes.
The court’s legal message was straightforward, if constitutionally basic. The court said Texas lacked “standing” to bring the suit — that is, that the justices had no power under Article III of the Constitution to even entertain the complaint.
That reasoning is “good news,” Wehle said. “The court is basically sending a message that states don’t have the ability to sue other states over how the other states are conducting their elections.”
Katyal said he read the decision as a unanimous, and adequate, rebuke of Trump and Texas. “While some wished for the court to explain its reasoning, it followed its usual procedures and summarily denied the case,” he said.
The audacity of the Texas lawsuit made the court’s job easier. The Lone Star State claimed its rights were violated because Pennsylvania, Georgia, Michigan and Wisconsin unconstitutionally expanded mail voting, opening up their elections to fraud and irregularities.
Texas sought to invoke the court’s so-called original jurisdiction, which lets states sue one another directly at the Supreme Court as if it were a trial court.
“I don’t read too much into the court’s order,” said Adam White, a scholar who focuses on the Supreme Court and constitutional law at the American Enterprise Institute. “The case was completely frivolous, and Texas’s theory of how it was injured by the other states was complete nonsense.”
How much public credibility the order buys the court remains to be seen. With a 6-3 conservative majority, the justices are positioned to transform vast areas of the law in the coming years if they so desire.
Cases already in the legal pipeline are asking the court to expand gun rights and bolster religious freedoms at the expense of equal treatment of LGBTQ people. The court has deferred for months acting on Mississippi’s bid to ban most abortions after 15 weeks of pregnancy — a case that could gut the 1973 Roe v. Wade abortion rights ruling.
And once Biden takes office, the court could significantly hamper the ability of the new administration to put its environmental, consumer-protection and immigration priorities in place.
But the court will also have a chance to reject another extraordinary effort by Texas — its bid to topple the Affordable Care Act based on a change Republicans made to the law in 2017. During arguments last month, a majority of the justices, including Trump-appointed Brett Kavanaugh, strongly indicated they were inclined to uphold the bulk of the law, also known as Obamacare.
A lopsided ruling affirming Obamacare would only enhance the perception, deserved or not, of an even-handed court that doesn’t rush to fulfill Republican wish lists.