Et tu, Barrett? Trump miscalculated the Supreme Court


When Texas went to the Supreme Court last Wednesday, and sued the four swing states of Georgia, Pennsylvania, Michigan and Wisconsin, Trump was hoping for a judicial coup. Instead, he received a coup de grĂ¢ce.

Trump had his baptism in litigation in 1973 when he hired the lawyer Roy Cohn to represent him and his father in a race discrimination in housing case brought by Nixon’s Justice Department. Cohn, a notorious fixer, was fond of saying cynically: “f---- the law, who’s the judge?” Cohn taught Trump all the dirty tricks of the trade. Always claim you won when you lost. If you do lose, change the rules. Get before the right judge. If the judge is in your pocket, they will give you the decision out of gratitude, as though you had made a campaign contribution. 

But Trump miscalculated. The three judges he appointed did not hand him the election as he had bragged they would. They unsurprisingly followed the law, and held the election was in the hands of the American people. Et tu, Barrett? This was the unkindest cut of all.

The case was the most extraordinary litigation that most lawyers had ever seen. Seventeen Republican-voting states joined Texas to make an “emergency” motion to reverse Trump’s defeat in the November election. Astonishingly, 126 of the 196 Republican members of the House of Representatives joined in the legal move as “friends of the Court” to overturn the very election which had just put them in office. Trump intervened in the proceeding. If the moving parties had prevailed, they would have ridden roughshod over the will of millions of voters. Pennsylvania’s brief in opposition to the motion charged the whole crew with a “seditious abuse of the judicial process,” and the shoe fits nicely.

The case was more of a publicity stunt than a lawsuit. Sen. Ted Cruz (R-Texas) said he wanted to argue the case, but the case would never be argued. Trump’s avatar, the Texas attorney general, who spearheaded Trump’s last gasp, is  Ken Paxton, battling allegations in his own state that he engaged in securities fraud, as well as bribery and other wrongful acts to help a real estate operator. He might be interested in a presidential pardon before Trump leaves office. 

The curious will want to know why the case originated in the Supreme Court with no involvement of the lower federal courts. The answer is that the Constitution in Article III, §2 gives the Court “original jurisdiction” to “all  Cases…in which a State shall be a party.” Congress has declared that the Supreme Court has original and exclusive jurisdiction of all controversies between “two or more States.” Original jurisdiction is usually reserved to adjudicate disputes between two states over such momentous issues as boundary disputes or water rights or the dispute between California and Texas over the right to tax the estate of Howard Hughes. The Supreme Court has often stressed that “our original jurisdiction should be invoked sparingly,” and has most often dismissed such cases without a hearing.

If a factual determination is required, the Court may will appoint a special master to hear the facts and report. Not much need for a special master here. Trump’s recycled claims of “massive fraud” have been rejected by every court that has confronted them.

While only the vote of four justices is necessary to grant a writ of certiorari to hear a case on appeal from the lower federal courts, five justices must vote to take a case invoking original jurisdiction.

The Court in a one-page order unanimously held that Texas lacks “standing” to question the election procedures in the other states, which are not even on its borders. "Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections," the court wrote.

The Constitution and the law leave federal election procedures to the individual states.

The two most conservative Justices, Thomas and Alito, were consistent in their views if nothing else. In 2016, the Court by a solid 6-2 majority refused to hear an original jurisdiction case brought by Nebraska and Oklahoma against Colorado, which had legalized marijuana. The moving states had argued that there were “spillover effects” taxing their criminal justice systems and hurting the health of their residents. Thomas and Alito dissented, holding that in an original jurisdiction case, a hearing is required.

The pair again dissented in another case decided earlier this year brought by Arizona against California. This time there were seven judges in the majority, including the recently-appointed Trump Justices Gorsuch and Kavanaugh. The Court denied the motion for leave to file the complaint without a hearing.

Thomas and Alito, acknowledging that the Court has “long exercised” discretionary dismissal without a hearing in original jurisdiction cases, dissented in the Trump case as they had before, arguing that a hearing was required in all original jurisdiction cases. Some judges like to hold hearings. But the two said that while they would have allowed the filing of the complaint procedurally, they would not have granted Trump or Texas any of the relief they sought. 

The Court’s very credibility as an apolitical and independent body was at stake on this one, and they came through with flying colors. The decision was a no brainer even for the justices who may have wanted Trump to win. He had no case. 

Texas contended that the four key swing states broke their own laws when they made changes to their election procedures to allow mail-in and drop-box voting. Trump had already made such claims in all four of the states, and he was universally thrown out of court. There was little new here

In short, Texas and the Republicans in Congress wanted the Court to overrule the will of the people, themselves choose the electors, and declare Trump the winner in what would be a judicial coup. Judges do a bad job of making political decisions. At the time of the Constitution, Madison opposed allowing the judiciary to choose the presidential electors. He said it was a bad idea that “was out of the question.”

All this comes as Kim Ward – a Republican state senator in Pennsylvania, a key swing state that Biden won – said she feared her home would be bombed if she failed to support Trump’s claims of election fraud. Democracy wept in Pennsylvania, but Friday it rejoiced in the Supreme Court. Here, we the people rule. The electoral college meets Monday to elect Joe Biden.

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