Donald Trump stood no chance in front of a conservative Supreme Court. Here’s why.

10 min readDec 12, 2020

Kevin McCarthy, the top ranking Republican in the U.S. House of Representatives, had earlier in the day attached his name to 125 fellow House Republicans who supported Trump’s longshot bid. McCarthy was the most notable congressman to back the suit.

On Tuesday, Texas Attorney General Ken Paxton sued four states where Biden had been certified the winner: Georgia, Pennsylvania, Michigan and Wisconsin. The suit, filed directly in the Supreme Court, was styled as “an original” case, pitting one state against another.

Paxton claimed that the targeted states made changes to election procedures due to the pandemic that violated federal law. He alleged the changes enabled voter fraud. And he asked the Supreme Court to extend the Dec. 14 deadline for the Electoral College electors to cast ballots in those four states, contending more time was needed to allow investigations of the election results.

Paxton’s suit came in the face of repeated findings by state officials, including Republican state officeholders, certifying the results, as well as statements by U.S. Attorney General William Barr that the Justice Department did not find evidence of widespread fraud in this year’s election.

The Texas suit set in motion a cascade of legal motions at the high court. Not only did President Trump seek to join the Texas suit, so did 17 other states — all overwhelmingly won by Trump. More support would follow, including the brief filed by a majority of the GOP members of the U.S. House of Representatives.

Late Thursday the four targeted states struck back in briefs filed in the Supreme Court.

“Texas invites this court to overthrow the votes of the American people and choose the next president of the United States,” wrote Georgia Attorney General Christopher Carr, chairman of the Republican Attorneys General Association. “That Faustian invitation must be firmly rejected,” he said.

“Georgia did what the Constitution empowered it to do,” the state’s brief said. It “implemented processes for the election, administered the election in the face of logistical challenges brought on by Covid-19, and confirmed and certified the election results — again and again and again. Yet Texas has sued Georgia anyway.”

Pennsylvania was equally acerbic. “The court should not abide this seditious abuse of judicial process, and should send a clear and unmistakable signal that that abuse must never be replicated,” it said in its brief. And Wisconsin said the Texas bid “to nullify [Wisconsin’s] choice [for president] is devoid of a legal foundation or factual basis.”

It was unclear how or why Paxton, the Texas attorney general, decided to carry Trump’s water in the case. Especially since all four targeted states have Republican-controlled legislatures, and to date, both state and federal courts at lower levels, including Trump-appointed judges, have found the fraud allegations baseless.

The unprecedented nature of the Paxton suit, plus the fact that the state’s chief appellate lawyer, Kyle Hawkins, did not sign the Texas brief as he usually would do, has spurred speculation that Paxton is seeking a pardon. He is currently under indictment over securities fraud, and is being investigated by the FBI on bribery and abuse of power allegations.

Although the Supreme Court has jurisdiction over disputes between states, such cases are rare, and are almost exclusively confined to disputes that can’t be handled by other courts, such as those over borders or water rights.

Earlier this week, the Supreme Court rejected an effort to block Pennsylvania from certifying its election results in favor of Biden. Trump distanced himself from the legal blow and hitched his wagon instead to the Texas lawsuit, calling it “the case that everyone has been waiting for.”

The Supreme Court’s refusal to help Donald Trump change the result of the 2020 election should come as no surprise for the very reason the president hoped to win the case: The court is conservative.

That means the three justices who owe their seats on the nation’s highest bench to Trump, as well as others nominated by Republican presidents, profess adherence to the Constitution and the precise text of federal statutes. They don’t just make stuff up.

So when Texas, backed by Trump and a cadre of Republican state attorneys general and members of Congress, asked the court to block election results from Georgia, Michigan, Pennsylvania and Wisconsin, it stood no chance of prevailing.

“The hallmark of conservative jurisprudence is respect for established law,” said Michael McConnell, director of the constitutional law center at Stanford Law School and a former federal appeals court judge appointed by President George W. Bush. “No one should be surprised that the justices, like the Trump-appointed lower court judges in all these election cases, followed the law.”

The law took them invariably in one direction, for a number of reasons:

• Texas lacked legal standing because it “has not demonstrated a judicially cognizable interest in the manner in which another state conducts its elections,” the court said in its brief order Friday.

• The state sought to leapfrog lower courts by framing the case as one in which the Supreme Court has “original jurisdiction.”

“Texas is asking the Supreme Court to take up a case in which it would have to find its own facts, in which it isn’t remotely obvious why Texas is the right plaintiff, and in which time is of the essence,” said Stephen Vladeck, an expert on federal courts at the University of Texas School of Law. “The posture in which the factual and legal arguments were presented necessarily made it impossible for those arguments to be taken seriously, even by the justices who might otherwise have been inclined to do so.”

Associate Justices Clarence Thomas and Samuel Alito, for instance, have urged the court to exercise more often its authority to hear disputes between states without requiring them to start in lower courts. But the Supreme Court still has discretion to deny outlandish requests.

Thomas and Alito said Friday they would have granted Texas’ request to make its case, but “would not grant other relief.”

“They may be conservative on legal and social issues, but they recognize that Texas’ claim was political theater, not a valid legal action, and that it would be impossible for the Supreme Court to serve as a trial court to evaluate allegations of election fraud in multiple states,” said John Bellinger, who served during Bush’s administration as legal adviser at the State Department. “To have taken the case would have delayed the transition and caused a constitutional crisis.”

More:Supreme Court dismisses Trump allies’ challenge to Pennsylvania election

What sets the justices and other federal judges apart from elected officials is their life tenure, which insulates them from political pressure. While scores of GOP officials saw political benefit in siding with Trump, judges and justices had no similar reasons.

“Politicians … will sometimes take truly awful positions on legal issues for political reasons. Judges have a different structure of incentives,” said Ilya Somin, a law professor at George Mason University’s Antonin Scalia Law School. “They don’t have the same need to cater to a political base or to the whims of Donald Trump. And they have stronger incentives to care about the precedent they are establishing.”

Thus it was that when Trump’s lawyers urged the Supreme Court this year to block Congress and New York prosecutors from gaining access to the president’s financial records, Associate Justices Neil Gorsuch and Brett Kavanaugh, Trump’s first two nominees, agreed that the president is not immune from criminal investigation.

Trump’s third nominee, Associate Justice Amy Coney Barrett, assured the Senate Judiciary Committee in October that she would not be beholden to Trump if called upon to weigh in on the election.

“I certainly hope that all members of the committee have more confidence in my integrity than to think that I would allow myself to be used as a pawn to decide the election for the American people,” Barrett said.

Similarly, Associate Justices Ruth Bader Ginsburg and Stephen Breyer joined the court’s unanimous 1997 ruling that President Bill Clinton could not sidestep a sexual harassment lawsuit brought by former Arkansas state employee Paula Jones.

“To be sure, justices may often have views on legal subjects that lead them to understand the law one way or another,” said Eugene Volokh, a libertarian professor at UCLA School of Law. “But they try hard to honestly apply their understanding of the law, without regard to which political figures will benefit from a decision.”

Jonathan Adler, a professor at Case Western Reserve School of Law, put it succinctly:

“Law matters,” he said. “Judges are not politicians in robes.”

The U.S. Supreme Court on Friday night rejected an eleventh hour challenge to Joe Biden’s election as president.

The court’s action came in a one-page order, which said the complaint was denied “for lack of standing.”

Texas, supported by President Trump, tried to sue Pennsylvania, Georgia, Wisconsin, and Michigan, claiming fraud, without evidence. But in order for a state to bring a case in court, especially the Supreme Court, a state must show it has been injured. In essence, the court said Texas could not show that it was injured by the way other states conducted their elections.

“Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections,” the court wrote.

Justice Samuel Alito, joined by Justice Clarence Thomas, wrote that in their view the court does “not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction.”

But the two said that while they would have allowed the filing of the complaint, they would not have granted Trump or Texas, any of the relief they sought.

Trump reportedly had conversations with some of the Republican attorneys general who were meeting this week in Washington, urging them to support the Texas lawsuit. And several news organizations reported that Sen. Ted Cruz, R-Texas, had agreed to represent Trump in the event the Supreme Court had agreed to hear the case.

Initial reaction to the Texas suit, however, has been dismissive at best. Sen. John Cornyn, R- Texas, told CNN that he “frankly struggle[d] to understand the legal theory” of the suit, noting that election disputes in our system are “decided at the state and local level and not at the national level.”

The Texas suit had other problems. First was the question of legal standing. Essentially, how do Texas, or the states joining it, have legal standing to complain about the procedures for voting and counting votes in other states?

Next, the Texas lawsuit asked the Supreme Court to delay the vote in four targeted states, but as professor Edward Foley of the Moritz College of Law observed, the date for electors to cast their votes is set by federal law under the Constitution, which requires that the day “shall be the same throughout the United States.”

The date chosen by Congress this year is Dec. 14.

Rick Hasen, an election law expert at the University of California, Irvine called Paxton’s lawsuit “dangerous garbage.”

“This is a press release masquerading as a lawsuit,” he wrote.

“It’s too late for the Supreme Court to grant a remedy even if the claims were meritorious (they are not),” he wrote.

On Friday evening after the decision, Hasen wrote that the fact that “courts across the nation, with both Democratic and Republican judges, held the line for the rule of law” is “something really to celebrate.”

Benjamin Ginsburg, a longtime election law guru for the Republican Party, told CNN on Wednesday that he didn’t think “for an instant” that the Supreme Court would consider taking up the case.

That said, with three Trump appointees on the court, and a newly strengthened 6–3 majority of conservative Republican-appointed justices, the president apparently believed that the Supreme Court would view the case differently than did “election experts.” He was wrong.

Trump later weighed in on the decision on Twitter. “The Supreme Court really let us down,” he wrote. “No Wisdom, No Courage!”

Barring unforeseen events, the result of the court’s action is that on Monday, the Electoral College delegates in each state will cast their ballots, and Joe Biden will formally become the president-elect, with only one more step, in the House of Representatives where the Electoral College votes are certified, before he is sworn in on January 20th.

Donald Trump stood no chance in front of a conservative Supreme Court. Here’s why.

Written by Zaman IT LTD