Trump, or extinction by irrelevance?
Update: The Supreme Court declined to hear the Texas suit late Friday afternoon.
The state of Texas has filed suit against four states where the presidential election results are in dispute: Michigan, Wisconsin, Georgia, and Pennsylvania. The Constitution gives the Supreme Court original jurisdiction for suits between states (Article III, Section 2). The court ordered the four states to submit their responses yesterday. A number of states have filed amicus, or friend of the court, briefs both in support of and in opposition to Texas.
Suppose the court either refuses to take the case or it rules against Texas. Suppose also that the Democrats win the two contested Georgia Senate races January 5. With the apparent cheating demonstrated in the presidential election and Georgia’s RINO governor and secretary of state, nobody should assume the runoffs will be fair or that challenges to an unfair election will have any chance of success.
Biden would be president and Democrats would control the House of Representatives and the Senate (it would be 50-50, but vice president Harris would break ties). They could and probably would carry out their plans to expand the Supreme Court and “pack” it with a unstoppable liberal majority. In either refusing to hear the Texas suit or accepting the suit but ruling against Texas, the Supreme Court’s five conservative justices will have contributed to their own demises as consequential jurists—collective judicial suicide.
On the other hand, the court could take the case and rule in favor of Texas. It helps that Texas has a strong legal case. Article I, Section 4 states: The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be proscribed in each State by the Legislature thereof; but the Congress at any time may at any time by Law make or alter such regulations, except to the Places of chusing Senators. This clause apparently has been extended to presidential elections, which are held concurrently with Congressional elections.
What this means is the state legislatures have exclusive control of how elections for senators, representatives, and the president are held within their state. Robert Madsen at AmericanThinker.com has done a good job of summarizing how the four states violated the procedures their legislatures enacted in those states’ own election laws (“A Summary of the Texas Election Lawsuit,” December 10, 2020), and how those violations could have changed the outcome. Many of the violations are changes in procedures implemented before the election by state secretary of states or other officials. Covid-19 has been the usual rationale. Some of the violations stem from the alleged vote counting shenanigans on the night of November 3 and the morning of November 4.
The two-fold Constitutional argument is straightforward. Changes by any person or entity other than the states’ legislatures are unconstitutional violations of Article I, Section 4. Furthermore, as Texas argues, they treat the citizens of Texas and other states who played by their own rules differently, and unequally, from the four swing states that violated their own rules. This is a violation of the Equal Protection clause in Section 1 of the 14th Amendment.
These arguments give the court’s judicial conservatives ample reason to rule for Texas. The ruling would comport with the plain language of the Constitution—always important to judicial conservatives and Constitutional literalists—and established precedent concerning legislative control of the time, manner, and place of presidential elections. The Covid-19 rationale is weak and Justice Gorsuch recently poured water on it in a concurring opinion invalidating New York Governor Andrew Cuomo’s Covid-19 restrictions shutting down religious institutions.
Government is not free to disregard the First Amendment in times of crisis.
It is time—past time—to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues and mosques.
Justice Neil Gorsuch, Concurring opinion, Roman Catholic Diocese of Brooklyn v. Cuomo
It looks like Gorsuch will vote to hear the Texas case and then, if the case is heard, rule for Texas. The question is will the other four conservative justices join him? (Chief Justice Roberts is an emasculated weenie who may or may not join.) They can decline to hear the case or hear it but then rule against Texas. However, they’d run the risks that a potentially rigged Georgia run-off election puts two more Democrats in the Senate and makes that body effectively Democrat-controlled, Democrats then pack the Supreme Court with an unstoppable liberal majority, and the conservatives spend their careers writing irrelevant dissents. That would be an especially ugly prospect for the court’s younger conservatives, Kavanaugh, Gorsuch, and Barrett.
Or they can rule for Texas, keep themselves relevant, and have an opportunity to shape Constitutional law and the course of the United States for many decades.
A win for Texas throws selection of electors for the electoral college into the the four states’ legislatures, which are all controlled by Republicans, presumably handing the election to Trump. Even if the Republicans lost both Georgia Senate seats, Trump would stop any court-packing scheme. On a non-judicial note, the conservative justices can’t be too happy with Democrat and leftist “initiatives” the last four years: Russiagate, the impeachment, Covid-19 totalitarianism, this summer’s riots, and the election shenanigans. So they have a choice: Trump, or risk their own extinction. The first choice looks like the better bet, although one never knows how deeply corruption and cowardice runs in the nation’s capital.