Questioning the Power of Five Unelected Judges

It’s human nature to be pleased when decisions go our way and upset when they don’t. This certainly applies to decisions made by the Supreme Court. But there is a basic issue of democracy vs. aristocracy when it comes to the Court’s ability to invalidate or undermine laws passed by elected officials.

A Harvard law professor, Nikolas Bowie, submitted this testimony to the Presidential Commission on the Supreme Court of the United States that Biden created earlier this year. Reprinted in The New York Times, its title was “How the Supreme Court Dominates Our Democracy: Judicial Review Gives Any Five Justices Power Over the Whole Government. Why?”:

The United States calls itself the world’s oldest democracy, which would be true if the world began in 1965. That was the year John Lewis marched to the Edmund Pettus Bridge, the president said “We shall overcome” and Congress passed the Voting Rights Act, which allowed many citizens to exercise their right to vote for the first time.

Yet the legislation of 1965 wasn’t Congress’s first attempt to build a multiracial democracy. A century earlier, lawmakers enacted a half-dozen laws that protected the right to vote, punished political violence, and banned racial discrimination in public places. But as Frederick Douglass lamented in 1883, those laws were “grievously wounded” and cut down during his lifetime. Their assassin was the Supreme Court.

Striking down the first federal voting rights act, the court wrote “It would . . . be dangerous if the legislature could set a net large enough to catch all possible offenders”. Concerning a White mob that murdered more than 100 Black voters, the court stated that “it does not appear that it was their intent to interfere with any right granted or secured by the constitution”. In 1903, the court held that the federal government was powerless to stop “the great mass of the white population [that] intends to keep the blacks from voting.”

Because the Supreme Court undermined or ignored Congress’s attempts to enforce the Constitution, the racial caste system that we know as Jim Crow emerged like an invasive species. With the court’s approval, White people in the South terrorized Black voters, disenfranchised them and enacted state laws to codify their place at the bottom of a racial hierarchy.

Today, as American democracy enters a midlife crisis, the Supreme Court has often been heralded as democracy’s guardian. Decisions dating from 1954’s Brown v. Board of Education are seen by many as essential responses to the tyranny of the majority. Yet it appears that the court has reverted to its older ways.

In 2013, a justice sneered at Congress’s nearly unanimous reauthorization of the Voting Rights Act, calling it the “perpetuation of a racial entitlement.” He was soon joined by four of his colleagues in the Shelby County decision, which treated a central provision of the Voting Rights Act as beyond Congress’s power to enact “appropriate” legislation. And in its Brnovich decision this month, the court stuck a second dagger into the act, calling it too “radical” to be enforced as written.

In the wake of these decisions — as before — Jim Crow laws are reemerging. By declining to enforce federal laws because it disagrees with Congress about whether they’re constitutionally appropriate, the Supreme Court has functioned as an antidemocratic institution that produces antidemocratic results.

In his inaugural address in 1861, President Abraham Lincoln offered perhaps the best argument for why Congress, and not the Supreme Court, should have the final word on what the Constitution requires. The court had just held in its infamous Dred Scott decision that Congress had no power to restrict the spread of slavery. “The candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by the Supreme Court,” Lincoln said, “. . . the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” Lincoln thought that a self-governing people should have the power to determine what their fundamental law meant.

Lincoln’s argument wasn’t that the Constitution shouldn’t be enforced, but rather that Congress was the best institution to enforce it. Most of the Constitution’s limits are vague: The 15th Amendment permits Congress to enact “appropriate legislation” to protect the right to vote, for example, while the Fifth Amendment prohibits Congress from violating the “due process of law.” For as long as these limits have existed, there have been passionate disagreements about what they require. Congress offers a relatively democratic method for resolving these disputes. If people or state governments disagree about a law’s constitutionality, they can campaign to repeal that law.

By contrast, when the Supreme Court decides not to enforce a federal law, the justices in the majority effectively declare that their view is superior to everyone else’s. Even if the president, more than 500 members of Congress and four justices interpret the Constitution as permitting a law, if five justices disagree, then the law is not enforced. This was the scenario in 2013, when five members of the court held that a key section of the Voting Rights Act wasn’t “appropriate legislation.”

Yet no democratic procedure requires the justices to think of themselves as political equals with people who disagree with them. And while later generations of justices can revisit and overturn any of the court’s precedents, everyone else has the formal power to overrule the court only if two-thirds of both houses of Congress and three-quarters of the 50 states approve a constitutional amendment.

Indeed, it’s difficult to explain why, in a democracy, the constitutional interpretation of five justices should be superior to the constitutional interpretation of the elected officials who appointed and confirmed them.

One possible answer is that it’s the court’s job to interpret the Constitution. “It is emphatically the province and duty of the judicial department to say what the law is,” Chief Justice John Marshall wrote in his famous 1803 opinion in Marbury v. Madison. “The constitution controls any legislative act repugnant to it.” But Marshall’s emphatic response, as one critic put it, “begged the question-in-chief, which was not whether an act repugnant to the Constitution could stand, but who should be empowered to decide that the act is repugnant.”

A second possible answer is that everyone, the justices included, should follow their own interpretation of what the Constitution requires. But we all expect presidents, federal officials, state officials and even state judges to comply with federal law, regardless of whether they personally believe that the law is constitutional. As Lincoln well knew, it would be profoundly antidemocratic for a member of a state militia or the military to resist federal law. So the question — again — is what makes the justices different?

The only honest answer is that the justices are supposed to be antidemocratic. As Justice Robert Jackson wrote in 1943, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” Other scholars have joined him in accepting the “counter-majoritarian difficulty” of judicial review. This perspective concedes that judicial review is antidemocratic — yet necessary for democracy to function properly.

This embrace of a judicial aristocracy affects much of the culture surrounding the Supreme Court. For the past hundred years, nearly every justice has been a graduate of an elite law school. New appointments are generally praised for their brilliance, credentials, professionalism and collegiality. And written briefs, adversarial argument, secretive deliberation, highly educated law clerks and a lack of political accountability are considered tools that allow the justices to resolve fraught questions correctly, even when their interpretations are politically unpopular.

But there is little historical reason to believe there is anything intrinsically correct about the Supreme Court’s constitutional interpretations. No expertise on the planet can determine whether Congress’s 1875 ban on racial discrimination, its 1965 expansion of voting rights, or its 2010 expansion of health insurance is “appropriate” or providing for the “general Welfare.” Resolving those questions requires the same trade-offs among competing principles that a democracy makes when it decides to enact any law. Our democracy suffers when an unelected group of lawyers take away our ability to govern ourselves.

This isn’t to say that Congress hasn’t adopted any horrific laws over the past 250 years. But there are few examples of the Supreme Court intervening in a timely fashion to overturn them. The court was silent at best when Congress violently captured fugitives from slavery, dispossessed Native American tribes, excluded Chinese immigrants, persecuted political dissidents, withheld civil rights from U.S. citizens in territories and interned Japanese Americans. Efforts to remedy these injustices have been achieved not by courts, but by expanding our democracy.

The history of judicial review of federal legislation shows that the principal “minority” most often protected by the court is the wealthy. Wealthy litigants can muster the skills, time, money, influence and capacity to challenge the same legislation over and over in court. For example, in 1895’s Pollock v. Farmers’ Loan and Trust Co., the Supreme Court invalidated a century of precedent to hold that a federal income tax would violate “one of the bulwarks of private rights and private property.” And in 2010’s Citizens United, the court threw out another century of federal campaign finance laws.

The best examples of judicial review working as expected by its proponents are cases such as the 2013 Windsor decision, which invalidated the Defense of Marriage Act of 1996, the 2008 Boumediene decision, which guaranteed minimal due process protections for Guantánamo detainees, and decisions in the 1970s that prohibited Congress from “protecting” women by engaging in sex discrimination. But when these cases are compared with rulings that directly contributed to the rise of Jim Crow, it becomes pretty evident that the court is, at best, no more reliable than Congress as a safeguard of political equality.

Of course, the Supreme Court has advanced democratic equality at the state level, from Brown v. Board in 1954 and Roe v. Wade in 1973 to Obergefell v. Hodges in 2015. But in these cases, federal judges didn’t disagree with Congress about the constitutionality of a federal law. To the contrary, they all enforced a federal law — the Ku Klux Klan Act of 1871. Congress enacted that law in response to Southern officials’ inaction against white supremacists terrorizing Black people. In its current form in the U.S. Code, the Klan Act instructs federal courts to invalidate state actions that violate the Constitution.

As the legal theorist James Bradley Thayer observed over a century ago, when the Supreme Court invalidates a state law, it is doing something far less objectionable than what it does when it refuses to enforce a federal law. In any federal system in which a national government disagrees with a state government, one side has to prevail. There is nothing undemocratic about our system in which the federal government decides who should win.

And when Congress instructs federal courts to preempt state laws — whether with the Klan Act or even with an ordinary federal law — the effect is as consistent with democracy as when President John F. Kennedy instructed federal troops to integrate the University of Mississippi. Either way, the federal government is simply seeking that its commands be enforced.

The situation profoundly changes when the Supreme Court goes rogue. For precisely the same reason that it can be democratic for federal troops to enforce Congress’s interpretation of the Constitution but extremely antidemocratic for them to disregard it, the proper role for federal courts in a democracy is to serve as its agents, not as a countervailing force. Democratic decision-making belongs in the hands of democratic bodies, not people with robes or guns.

Indeed, what a case like Brown actually illustrates is how federal legislation has successfully expanded American democracy when the Supreme Court serves as Congress’s enforcer. As the law professor Michael Klarman has observed, Southern schools remained almost as racially segregated in 1964 as they had been 10 years earlier, when Brown was decided. Formal segregation drew to a close in the South only after Congress enacted the Civil Rights Act and the Voting Rights Act.

Yet both laws stood in the face of Supreme Court precedents that restricted Congress’s power. Because the court continued to hold itself as the supreme interpreter of the Constitution, it had to give Congress permission to evade its own bad precedents . . .
Which returns to the original problem: Why should a court be in charge of a democracy? The answer is: It shouldn’t.

. . . Most of the time, the court gives Congress free rein to act as it pleases. But the justices are quick to pull on the reins when lawmakers move to disrupt hierarchies of wealth or status. Either way, the court arbitrarily dominates Congress: Even when the court is permissive, Congress can make no law without permission.

What makes that domination arbitrary is that the justices themselves are unbridled. Federal laws stand and fall on the votes of nine unaccountable lawyers, all appointed for life because of their educational backgrounds and relationship to the governing elite.

As a result, the political choices available to us as a democracy depend not on our collective will but on the will of people who hold power until they resign or die. This is precisely what the Declaration of Independence protested. As absurd as it was then for a continent to be perpetually governed by an island, it is equally absurd now for a nation of 300 million to be perpetually governed by five Harvard and Yale alumni.

As we debate new legislation to expand the franchise and protect the right to vote, the threat of judicial invalidation has forced our elected representatives to lower their expectations about how democratic our nation can become. In the name of protecting us from the excesses of democracy, the judicial review of federal laws is costing us democracy itself.

Voting Is War, Part 2

In their latest ruling, the Supreme Court’s six reactionaries ignored the law in order to help their party’s candidates get elected. Paul Waldman of The Washington Post discusses the latest case in which the Court’s liberals are reduced to writing a “blistering” dissent:

To no one’s surprise, the Supreme Court’s six conservatives [No, radical reactionaries] on Thursday ruled for Republicans in a pair of key voting rights matters, upholding two Arizona voter suppression laws. It’s part of the long-running partnership between Republicans in the states, Republicans in Congress and Republicans on the Supreme Court to make sure that the rules of American elections are twisted and contorted to give the GOP every possible advantage.

At issue was a section of the Voting Rights Act (VRA), which was once the crown jewel of U.S. voting law and a foundation of political equality, that has been gutted by a Supreme Court unremittingly hostile to voting rights.

And the justices aren’t done, not by a long shot.

One of Arizona’s laws makes it a crime for most people to deliver someone else’s absentee ballot, a heretofore common practice of particular importance to Native Americans in the state, who find it challenging to vote given their wide geographic dispersion and slow mail service (but also used regularly by organizers in Black and Latino communities). The other law says that if you vote in the wrong precinct, the state will throw out your entire ballot, even the votes for races where the precinct is irrelevant (e.g., president).

The laws were challenged as violating the VRA because they disproportionately affect minority voters. As the plaintiffs pointed out, minority voters in Arizona are about twice as likely to mistakenly vote in the wrong precinct for a variety of reasons.

Did the Republicans who put that law in place understand that? Oh, you bet they did.

Section 2 of the VRA says statutes are invalid if they have the effect of harming people’s ability to vote on the basis of their race, even if you can’t prove that the party that passed it was doing so with racist intent. Whether that section of the VRA has any meaning in the wake of this decision is an open question.

The decision, written by Justice Samuel A. Alito Jr., argued that the system in Arizona offers ample opportunity for everyone to vote, even if it seems to fall heavier on some people, and concluded that the state’s interest in preventing voter fraud outweighs whatever overall disparate impact the law has.

The fact that voter fraud is almost entirely fictional did not disturb the justice.

In a blistering dissent [starting on page 45 of this PDF], Justice Elena Kagan wrote that the majority had essentially invented its own reading of the VRA, and accused the majority of pretending not to know that such state laws are occurring in a context where efforts to suppress minority voters continue.

“No one would know this from reading the majority opinion,” Kagan remarked.

Kagan’s disgust is appropriate. This case is part of a long and ignominious campaign by the court’s conservatives to hollow out American democracy in any way they can, so long as doing so helps the Republican Party. For this court, no voting rights provision is too sacrosanct to strike down and no voter suppression law is too discriminatory to uphold. If next week Republican-controlled states brought back poll taxes and literacy tests, the court would probably find a reason to validate them.

In the past few years, this court has again and again taken a hammer to the rules meant to ensure free elections in which all Americans can participate on an equal footing. Let’s remind ourselves:

  • In 2010, the justices said corporations have the right to use their billions to influence elections.
  • In 2011, they struck down a public financing law meant to allow candidates relying on small donations to compete with self-financed millionaires and billionaires.
  • In 2013, they struck down the heart of the Voting Rights Act, claiming it was no longer necessary because racism is pretty much over.
  • In 2018, they upheld ruthless voter purges that disenfranchise thousands of voters.
  • In 2019, they ruled that partisan gerrymandering, no matter how clearly it disenfranchises people, is beyond the ability of the courts to do anything about.

The partisan commitment of this court is so clear that in oral arguments, the lawyer for the Arizona GOP comfortably declared that the party has standing to support the law throwing out ballots cast at the wrong precinct because counting such votes “puts us at a competitive disadvantage relative to Democrats.” He knew who he was talking to.

The big picture here is that the court’s conservatives operate according to the “heads we win, tails you lose” approach to voting rights, in which with only the occasional exception, the best predictor of how a voting rights case will turn out is which side the Republican Party is taking.

Pretty much the entire GOP is now committed to the idea that if elections were fair, they’d lose — so elections must not be allowed to be fair. That’s why they’ve been on a tear at the state level, passing dozens of laws making voting more cumbersome, inconvenient and difficult, all aimed directly at populations they believe are more likely to vote for Democrats.

Wherever those laws pass, they’re being challenged in court. But what’s going to happen when those challenges make their way to the Supreme Court, with its 6-to-3 conservative supermajority? The answer is all too clear.

It Would Be So Un-American If It Wasn’t So Historically Popular

The article’s subtitle is “Republican lies about voter fraud are giving way to naked grasping for power”. From Joyce Vance for MSNBC (links in the original):

We’re living in a time where one political party openly believes it’s more important to win elections than it is to let Americans choose their own representatives in free and fair elections. And whether they’re going to get away with it is shaping up to be one of the most important issues the country faces.

The Supreme Court isn’t a venue where you typically expect to hear the quiet part said out loud. But that was what happened Tuesday, when an attorney for the Arizona Republican Party, Michael Carvin, advised the court that provisions that made it easier for eligible Americans to vote put “us at a competitive disadvantage relative to Democrats.” He was implicitly characterizing laws that make voting more difficult for likely Democratic voters, often people of color, as the difference between winning and losing elections.

Carvin was, of course, not the first person to say out loud what has become increasingly obvious to anyone paying attention: Republicans’ support for laws that make it more difficult to vote has little to do with their boogeyman — voter fraud — and everything to do with winning elections despite the will of the voters.

The former president did the same when he told “Fox & Friends” last March that Covid-19 mitigation proposals that included provisions that made it easier for more people to vote safely would mean “you’d never have a Republican elected in this country again.”

Historically, restrictive voting measures have been justified as necessary to keep a shadowy group of people who are allegedly intent on casting fraudulent ballots from stealing elections. But those people never seem to materialize, and we’ve watched that narrative implode over the past few months as claims of fraud in the election were definitively rejected in over 60 lawsuits.

Similarly, after the 2016 election, [the winner of the Electoral College] established a so-called Election Integrity Commission to prove the existence of “widespread voter fraud.” It was forced to shut down just months into its work when it was unable to find evidence to substantiate that claim. Still, the fraud lie is routinely used to burden minority voting rights.

This happens despite the conclusion by the Brennan Center for Justice, based on the data, in December that “voter fraud is extraordinarily rare and our system has strong checks in place to protect the integrity of our voting process. These are the facts.”

It was in this landscape that the Supreme Court heard oral arguments Tuesday in Brnovich v. Democratic National Committee, in which Democrats sued Arizona under Section 2 of the Voting Rights Act. The plaintiffs argued that a policy that kept otherwise lawful ballots that had been cast in the wrong precincts from being counted, as well as a law that broadly restricted people from having other people turn in early ballots for them, amounted to unlawful voter suppression. The court seemed inclined to approve both of the Arizona provisions; the Court of Appeals had ruled that they unfairly burdened Black, Latino and Native American voters.

When the Supreme Court issues its ruling, what’s really at stake is whether its holding will affect more than just the Arizona provisions. Brnovich gives an increasingly conservative court the opportunity to adopt a standard of proof in Section 2 cases that would make it easier for Republican legislatures to enact policies that make it more difficult for people of color to vote, simply by claiming they are guarding against voter fraud. Brnovich might result in a strict test that would apply to future cases — like those that may need to be brought if some of the more than 250 bills Republicans have offered to restrict voting pass in their legislatures.

It’s clear that Republican operatives and legislatures have adopted voter suppression through restrictive legislation as a political strategy. Now that a lawyer has confirmed before the Supreme Court that it’s really just about winning elections, what’s a constitutional republic to do?

It’s probably too much to hope that the court will have a moment of righteous indignation. This is an even more conservative court than the one that gutted the Voting Rights Act in Shelby County v. Holder in 2013, when Justice Ruth Bader Ginsburg accused the majority of taking away the umbrella that protected us in the middle of the rainstorm because we were still dry while using it.

It seems like it would be easier to go out and compete for votes with attractive policies and ideas than to engage in complicated legislative shenanigans and expensive litigation, but some Republicans seem to be as afraid of voters as a kid headed home to his parents with a bad report card.

So the only real solution to protect the right to vote is for the Senate to pass the For the People Act, which the House cleared Wednesday night, and for both chambers to pass the John Lewis Voting Rights Act. Those laws would restore the protections of the Voting Rights Act and remove barriers that make it difficult for eligible people to register and vote. If passed, they would restore the mechanism to challenge unduly restrictive state practices.

Unless the Supreme Court does something unexpected, this is the only path forward.
Otherwise, next year and beyond, a party that controls its state’s legislature can impose rules that make it confusing and difficult for some people to vote. It can create an array of last-minute changes and restrictions that defeat your right to vote, for instance by changing your polling place and rejecting your ballot if, unaware, you go to the previous one.

While your choice of whom to vote for may be political, the right to vote itself isn’t. Instead, it’s a fundamental right that defines who we are as Americans. In part, the story of America has been about expanding groups of people who can exercise the franchise. We celebrated the 100th anniversary of women’s gaining the right to vote last year. Important parts of our history are about people who persisted in demanding the right to vote and the dignity that comes with it for Black people, including the Selma march and the use of dogs and fire hoses against protesting schoolchildren in Birmingham. If we become a country where the right to vote can be restricted through political machinations, then who are we?

People who are afraid of the results of elections in which everyone who is eligible to vote can vote are people who don’t believe they have a good case to make to the voters — people who think they’re going to lose because they haven’t governed well. In the words of the lawyer in the Brnovich case, “Politics is a zero-sum game, and every extra vote they get … hurts us.” But voting is about our rights, not about gamesmanship. Elections should be decided by the people, not by slick efforts to make it harder for some people to register or vote.

Tyranny On The Docket

The Supreme Court should unanimously choose democracy over tyranny, possibly as soon as today. I use “should” in both of its senses: it is the right thing to do and they will do it. The only question is whether they dismiss Texas’s outrageous lawsuit with or without an explanation. Greg Sargent of The Washington Post argues that we need to consider what’s at stake: 

President Txxxx has once again demanded that the Supreme Court invalidate millions of votes in four states, nullifying the election and keeping him in power illegitimately.

Indeed, Txxxx was unintentionally explicit on this point: He predicted that Joe Biden’s presidency will be corrupt, and commanded the court to overturn the election results on that basis, in the process making this command with no legitimate legal or constitutional basis at all.

As early as Friday, the Supreme Court is expected to weigh in on this demand, which has taken the form of a lawsuit waged by the state of Texas, and backed by Txxxx and his propagandists, against four swing states that Biden won. The court will likely refuse to hear the case.

All of which is why the scorching reply brief that Pennsylvania has now filed is an extraordinarily important document. It frames the stakes with appropriate urgency, by essentially arguing that the Texas lawsuit and its supporters are, in effect, asking the court to arbitrarily and lawlessly impose the will of Txxxx supporters on that of the majority that rejected Txxxx — i.e., tyranny.

Even if the court does reject the lawsuit, it’s important for Americans to understand what Txxxx and his co-conspirators are attempting. Now that more than 100 House Republicans, more than 15 Republican state attorneys general and the two GOP senators running in the Georgia runoffs have endorsed this lawsuit, we should be clear on what large swaths of the GOP are really supporting.

The Texas lawsuit asks the court to invalidate the outcomes in Pennsylvania, Michigan, Wisconsin and Georgia on the grounds that the voting in them was administered illegally, a claim that largely revolves around the dramatic expansion of vote-by-mail in them. That could clear the way for GOP-controlled state legislatures in all four to appoint pro-Txxxx electors.

The Pennsylvania brief attacks the core of Texas’s case . . . . Pennsylvania points out that numerous courts have already shot down the same irregularities alleged by Texas, including the falsehoods that verification standards weren’t followed and that poll-watchers weren’t allowed to witness counting. . . .

It’s in debunking the merit of Texas’s other claim — of harm done to it — that the bigger point is made.

As the Pennsylvania brief notes, intrastate disputes that the Supreme Court has heard generally involve alleged damage done by one state to another state’s “core sovereign interests.” This might involve, say, a dispute over a boundary or a body of water.

In this case, though, Texas is instead claiming that its voters have been harmed by the supposedly illegitimate pro-Biden outcome in the four other states.

Which Texas voters were harmed by this? Why, those who voted for Txxxx, of course, or at least didn’t vote for Biden. . . .

[The Pennsylvania] brief notes, what Texas is really demanding is this:

Far from trying to vindicate its own sovereign or quasi-sovereign interests, Texas is ultimately seeking redress for the political preferences of those of its citizens who voted for President Txxxx.

It adds:

Let us be clear. Texas invites this Court to overthrow the votes of the American people and choose the next President of the United States. That Faustian invitation must be firmly rejected.

. . . Stephen Vladeck, a law professor at the University of Texas at Austin, emails me this:

Texas is basically asking the Supreme Court to overturn the election for no other reason than because it has suspicions no one has been able to prove about mischief in other states. It’s not just a borderline frivolous legal suit; it’s an invitation to the Justices to simply substitute the preferences of a minority of voters for those of the clear majority.

We spend a great deal of time debating whether Republican elected officials endorsing this effort genuinely support its goals or instead are trying to realize other instrumental purposes, such as energizing the base or keeping Txxxx happy so he will endorse GOP candidates.

But even if those are also operative motivations, . . . would these elected Republicans be fine with this effort actually succeeding? There is just no evident reason to give them the benefit of the doubt . . . 

Ridiculous, But Still Seditious

The attorneys general of Texas and 17 other states run by Republicans are asking the Supreme Court to change the winner of the presidential election in four states Joe Biden won: Georgia, Michigan, Pennsylvania and Wisconsin. If the Supreme Court agreed, the Democratic electors in those four states wouldn’t get to vote for Biden. Instead, the Republican-led legislatures in George, Michigan, Pennsylvania and Wisconsin would appoint electors who would then presumably vote for Biden’s opponent. Since those four states have 62 electoral votes between them, the Orange Menace would receive 294 electoral votes, enough for him to stay in office another four years. Voila!

The president and his cult have already lost more than 50 lawsuits before both Democratic and Republican judges aimed at changing the results of the election. But, according to the president, this latest lawsuit is “the big one”. It’s always been his hope that the Supreme Court, now overflowing with Republicans (three chosen by him), would come to his rescue if the election didn’t go his way.

In lawyer-speak, there is “no factual or legal basis” for the Supreme Court to intervene in the election. Giving Texas what it’s asking for would amount to a judicial coup d’état. Pennsylvania’s response to the lawsuit says “the Court should not abide this seditious abuse of the judicial process, and should send a clear and unmistakable signal that such abuse must never be replicated”. It’s not a close call.

In fact, it’s unlikely that the attorneys general of Texas and the other states think they can win. The president may be an ignoramus who lives in a world of his own imagination (he is), so he might think there’s hope. No doubt millions of his supporters believe the Supreme Court will step in and save their hero. But the attorneys general all made it through law school. They’re simply using the Supreme Court to publicly demonstrate they’ll do anything, no matter how preposterous, to back this president and Keep America Great Again.

As an indication of the seriousness of the Texas lawsuit, look at the statistical “evidence” the lawsuit presents (pages 6 and 7 here). They got one of the president’s supporters, who is roughly 80 years old and claims to have a Ph.D.in economics, to state that there was less than a 1 in 1 quadrillion chance (that’s less than 1 in 1,000,000,000,000,000) that Biden won even one of the four states, given (1) how far ahead Txxxx was at 3 a.m. on the night of the election and (2) how much better Biden did than Hillary Clinton four years ago. These calculations were based on two absurd assumptions:

(1) Votes counted before 3 a.m. on the night of the election and those counted after 3 a.m. (including on subsequent days) were from identical samples of voters. But, as expected, Democrats tended to vote by mail, which meant their ballots were counted more slowly; and, of course, some jurisdictions count votes and report results more slowly than others. The assumption that “votes are evenly and randomly distributed among geographic regions, demographics, and voting method, so that any two large groups of voters should generate similar results [has been] described as “ludicrous” and “statistical incompetence” by several academics. Kenneth Mayer, professor of political science at the University of Wisconsin, said “This is going to be used in undergraduate statistics classes as a canonical example of how not to do statistics” [Wikipedia].

(2) Since they were both Democrats running for president, Joe Biden and Hillary Clinton should have received roughly the same percentage of votes in the four states. Is it necessary to mention that Biden and Clinton were different candidates running in elections four years apart, and that Clinton ran against a political newcomer, while Biden ran against an incumbent with a disastrous four-year record? Or that the differences between Biden’s percentages and Clinton’s were relatively small — the only significant difference being that he won and she lost?

So, the Supreme Court will either refuse to consider Texas’s lawsuit or dismiss it. This doesn’t mean it’s unimportant. Millions of Republican voters, more than a few of whom are either violent or crazy, are counting on the Supreme Court. How will they react when they’re disappointed? (Gosh, I hope they refuse to vote in the Senate election in Georgia — that will show the politicians who’s boss!)

Secondly, hundreds of Republican politicians from around the country have signed on to this lawsuit, all repeating the same stupid arguments in favor of ignoring the votes of millions of their fellow citizens. As Paul Krugman wrote today:

The [Republican Party] has no commitment to democracy, and hasn’t for years. Given the chance to turn America into Hungary, the GOP wouldn’t hesitate for a second.

Some Republicans might hesitate, but it’s clear that one of our major political parties no longer plays by the rules. Their goal is power, and we have no idea how far they’ll go to get it or keep it. 

Note: Now that all the states have certified their election results, the Electoral College will meet on Monday and declare Joe Biden the winner. Thirty-seven days later, he’ll be sworn in. If you’d like to look at the legal documents filed for and against Texas’s suit, they’re available on the Supreme Court site.