Sunday, December 13, 2020

For Trump, a Final Loss at Supreme Court

          The Supreme Court cut to the chase on Friday [Dec. 11] by rejecting the week-old legal effort by Texas and 17 other red states to reverse Joe Biden’s victory over President Trump by judicial fiat after his decisive popular vote loss at the polls. With two justices dissenting, the Court threw out Texas’s unprecedented legal maneuver with a two-sentence order that, predictably, prompted a snivelingly defiant tweet from the about-to-be former president.

            With three Trump appointees on the Court, the justices deserve a measure of credit perhaps for spurning Texas’s anti-democratic legal maneuver. But the Court could have done more by warning, just as Pennsylvania’s attorney general did in his legal filing in the case, that Texas’s lawsuit amounted to “seditious abuse of the judicial process.”

            The Court’s order set the stage for Joe Biden, twice elected as vice president on the Obama-Biden ticket with a majority of the popular vote, to be designated as president-elect when presidential electors cast their electoral votes in state capitals on Monday [Dec. 14]. Barring any “faithless” electors, Biden will gain 306 electoral votes from 24 states, including four that he flipped from Trump’s column in 2016: Georgia, Michigan, Pennsylvania, and Wisconsin.

            Texas sued those four states on Dec. 4 for supposedly changing election procedures in violation of the U.S. Constitution by invoking the Supreme Court’s “original” jurisdiction over suits between states. Suits between states typically involve boundary disputes, water rights, or cross-border pollution but never before in a dispute over election procedures.

            The Court denied Texas’s “motion for leave to file a bill of complaint” for “lack of standing” by concluding, in legalistic phrasing, that the Lone Star State “has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” In lay terms, the justices said that Texas has no business whatsoever in how other states conduct federal elections.

            In advance of the Court’s action, announced in mid-afternoon on Friday, one high-profile Court watcher called for the Court to issue something more than a brief, unelaborated order. Most notably, Tom Goldstein, Supreme Court advocate par excellence and founder of the invaluable SCOTUSblog, urged the justices in the blog's first-ever editorial to “decimate” Texas’s legal filing. The justices’ action, Goldstein argued, “needs to account for this extraordinary, dangerous moment for our democracy.”

            Texas’s 92-page filing, signed by the ultrapartisan Republican attorney general Ken Paxton, was widely mocked by nonpartisan legal experts but gained support from 17 red-state attorneys general, who sought to intervene in the case, and 126 Republican members of Congress who joined an amicus brief supporting Texas’s plea. For the historical record, the Washington Post’s editorial page columnist Ruth Marcus listed all those names in a column so that they can live forever in infamous memory. “These Republicans may not be capable of shame,” Marcus wrote at the end, “but you should know who they are.”

This proud Tennessean noted sadly that the list include my home state’s attorney general and six members of the state’s congressional delegation. Among House members, the list included three members of the House Republican leadership: minority leader Kevin McCarthy, whip Steve Scalise, and Republican policy committee chair Gary Palmer. Others on the list included the ranking members of two of the chamber’s most powerful committees: Jim Jordan from Judiciary and Kevin Brady from Ways and Means.

Trump himself filed a motion to intervene as plaintiff in the case on the ground that he “clearly has a stake in the outcome of this litigation.” The five-page motion was signed by John Eastman, the archconservative law professor at Chapman University in California who most recently made news with a new “birtherism” issue challenging Kamala Harris’s qualifications for the vice presidency on the false ground that she is not a “natural born citizen.”

In advance of the Court’s order dismissing Texas’s case, some legal ethics watchers argued that Paxton himself might warrant professional discipline for bringing a case that, if not frivolous, was at the least dangerous. Garrett Epps, a longtime friend and colleague as former columnist for The Atlantic, aptly called Paxton “a legal menace” in an article published in Washington Monthly. “Let’s not futz around here,” Epps wrote, with the case not yet dismissed. “Texas has no legal interest in which presidential candidate the people of other states select.”

For their parts, Goldstein and Marcus both speculated that a strong statement from the Court might counteract the widely shared myth among Trump’s political base that Biden’s victory was tainted by widespread fraud – fraud that Trump’s slapstick legal team has yet to prove in 50 post-election court cases. In the event, however, Trump’s supporters took to the streets in Washington on Saturday [Dec. 12] by massing at the Supreme Court, perhaps one thousand strong, with placards pleading “Stop the Steal.”

The cry-baby Trump responded to the Court’s action with a whining tweet that with 74 million votes he was entitled to intervene in the case even if it was dismissed. Earlier in the week, the Court had dealt Trump’s team a decisive defeat by refusing to grant an effort by Pennsylvania Republicans to prevent certification of the Biden electors in the Keystone state.

None of the justices voted to proceed with the Pennsylvania, but in the Texas case Thomas and Alito argued, as they have argued in the past, that the Court has no discretion to refuse to hear a lawsuit brought by one state against another. Even so, Thomas and Alito stated that they would not have granted Texas the relief that the state was asking for. With yet another setback in the courts, the question for Trump must be this: “Are you tired of losing yet?”


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