Three things are true about the current, Republican-controlled Supreme Court.
The first is that in 2020, when outgoing President Donald Trump was pushing his allies on the court to overturn his defeat for the presidency that year, Republican justices did not. Despite what this Court has done before and since to undermine democracy and write Republican policy proposals into law, even these Justices refused to join a coup. Joe Biden won by a clear enough margin that even this court did not question his victory.
The second fact is that, in 2000, when the election was so close and the results were open in a single state, the court upheld Republican George W. Bush for president. Bush vs. Gore. The five justices who generally voted in favor of the GOP were the majority BushAnd four justices who have generally favored the Democratic Party’s goals dissented. The majority’s reasoning was widely derided, in no small part because it seemed to abandon longstanding conservative principles to achieve a partisan end.
And then there’s a third reality about this court: Over the past year, the court has gone out of its way to protect Trump from the legal consequences of his behavior.
Last March, the Colorado Supreme Court ordered Trump removed from the ballot after a highly motivated argument that, by inciting the Jan. 6 riot, Trump violated the 14th Amendment’s ban on high-ranking officials who “Rebellion against or involved in rebellion“In the United States, five Republican justices effectively struck down this provision of the Constitution for the 2024 election period.
Similarly, the Court’s opinion in Trump v. United States (2024) granted Trump broad immunity from criminal prosecution for crimes committed while in office. The most amazing part Trump The immunity suit says that, if he’s returned to office, Trump can order the Justice Department whatever he wants — even if he orders federal law enforcement to act for “improper purposes” — and that Trump would be immune from criminal consequences for issuing those orders.
Meanwhile, openly Trump Campaigning to arrest his political rivals. He even suggested to critics of the Republican Supreme Court that “Should be jailed“
Right now, polls show a race between Trump and Vice President Kamala Harris More or less a coin flip. On election day, the country could easily find itself among others Bush vs. Gore The circumstances and, if Trump loses, his behavior after his 2020 loss suggest he will eagerly appeal to a GOP-controlled Supreme Court to overturn the will of the voters.
The only uncertain question is whether these justices will join him in his second attempt to overturn the results of the presidential election.
A coup is more likely if the election is too close
In retrospect, results Bush vs. Gore Wasn’t surprising. In 2000, when all other states’ votes were counted, the winner of the presidential election depended entirely on who won Florida. And the primary in that state showed Bush ahead by 1,784 votes (which eventually narrowed to 537 votes).
The justices who wanted Bush to be president didn’t actually have to do much to ensure his victory. All they had to do was maintain the status quo and prevent Florida from having a vote recount to potentially put Gore in the lead. And the five-judge majority did just that, Directing the state to stop recounting It revealed that Gore, not Bush, was the real winner of the election.
Of course, the court’s decision was difficult to defend on its legal merits. It was unusually radical, faulting Florida for failing to apply “uniform rules” to ballot recounts, and suggesting that any state that applies a slightly different method in one county than another violates the Constitution.
If this rule were applied universally, Democrats could use it to make American election laws more egalitarian and progressive. But a five-judge majority confirmed that would not happen, ruling that “our discretion is limited to the present circumstances.” Bush It was only a one-time decision, demolishing a radical theory of equality just as long as it took to install a Republican in the White House, then promptly returning that theory to the highest shelf.
But the brutal nature of the court’s decision didn’t change the fact that, once the five justices committed to making Bush president, it was very easy for them to find a way to do it. Again, all they had to do was keep everything the same in one state until Bush was officially declared the winner of the election.
Contrast these results with multiple electoral disputes arising from the 2020 elections. While several states were nail-bitingly close, Biden won 306-232 In the Electoral College. To change the results, Trump’s lawyers would have to convince the justices to toss about 43,000 Biden votes in three different states.
This means that judges must reach the implausible conclusion that, in a presidential election, three states violated the Constitution or federal law in some way by declaring the wrong candidate the winner. The likelihood that such a cascade of errors could occur independently in multiple states is, to put it mildly, very small. And the justices probably realized that if they tried to convince the American people that such an incredible series of events had occurred, a large number of Biden’s more than 81 million voters would have taken to the streets and refused to accept the court’s ruling.
Thus, the more the 2024 election looks like 2000, the more likely the outcome will be a single state, the more likely Republican justices will intervene to ensure a Trump victory. The more Harris could raise the score, the court allowed his win to stand.
The court has already laid out the doctrinal framework for its decision to nullify the 2024 elections
So what about the Supreme Court’s decision to overturn the 2024 elections? More likely, this will look like a 2020 court dispute out of Pennsylvania.
During the pandemic, the Pennsylvania Supreme Court ruled that some ballots sent before Election Day would be counted even if they did not arrive at the election office until three days after Election Day. Although the US Supreme Court has the final say on questions of federal law, each state’s highest court has the final say on questions of state law. Therefore the Pennsylvania court’s decision should have been final because it was rooted in that court’s interpretation of Pennsylvania state law.
Nevertheless, the Republican Party asked the Supreme Court to reverse the Pennsylvania court’s decision and order the ballots to be thrown out, and several Republican justices urged their court to do so. In the end, the court dismissed the case as a total — Biden won Pennsylvania by a large enough margin that it didn’t matter what happened on that ballot.
The court has since announced its verdict Moore v. Harper (2023), a case in which the Justices claimed a new power to overrule a state Supreme Court’s interpretation of a state’s own election laws. Although Moore It was largely seen as a victory for suffrage because it rejected a very aggressive attempt to eliminate voter protections enshrined in state constitutions, with an ominous line in the court’s opinion saying that the US Supreme Court can overturn a state’s highest court decision if a state decision affects a federal election. “Extra[s] Limits of Ordinary Judicial Review.”
The court didn’t define the phrase—it just hung it out there as a warning that judges could exercise a new and unprecedented power to change elections at some point in the future.
In any election, there are regular legal disputes over which ballots should be counted, whether certain polling places should be kept open late, and other routine legal disputes that are usually resolved by state courts without much drama. Now, however, a Republican-controlled Supreme Court claims the power to overturn any of those decisions, and potentially rewrite a state’s own election laws.
If the justices decide to nullify the 2024 presidential election, in other words, they’ve given themselves a powerful new tool they can use to find reasons to do so.
