The Fight for the US Supreme Court and Its Political Ramifications
Impartiality is crucial to any judicial system, even more so when constitutional and supreme courts have to adjudicate conflicts between different state authorities, political actors, or certify election results in democratic polities. This impartiality has long been under siege in the United States Supreme Court, which has evolved to reflect the increasing polarization of American politics. Senate confirmation hearings of would-be Associate or Chief Justices are now the highest battleground of the culture wars between liberals and conservatives. The 9 Justices have become familiar faces to many average Americans, some reaching an almost hero-status among their respective supporters (the late Antonin Scalia and Ruth Bader Ginsburg easily come to mind). The recent passing of Bader Ginsburg and the subsequent vacancy on the Supreme Court, coupled with what is shaping out to be an unusual Presidential election that may well end up in the courts, has led many to draw uncomfortable parallels to the Bush v Gore debacle. Will the Court weather the storm and come out of it unscathed, avoiding a loss of credibility and legitimacy? And if the Court is forced to take a decision regarding the election, what will the best course of action for the future of judicial integrity be? The answers to these questions depend, like many others, on the results of the November 3rd election.
Eight days after the passing of liberal icon Ruth Bader Ginsburg on September 18th, President Trump announced his nomination for her replacement: US Court of Appeals circuit judge Amy Coney Barrett. Since then, both the President and Senate Majority Leader Mitch McConnell have stressed the importance of getting Barrett confirmed on the Supreme Court as fast as possible. With the Republicans holding a 53-47 majority in the Senate, Barrett’s confirmation vote will probably take place by the end of October. Predictably, this has stoked the anger of Democrats, who were in a similar position in 2016. After the death of Justice Scalia in February of that year, President Obama announced his nominee for the Supreme Court: judge Merrick Garland. The Republican majority in the Senate refused to even meet Garland, claiming it was too close to the election and that the people should be allowed to have a say in who the new Justice will be. Mitch McConnell has now reversed his stance and vows to confirm Barrett with less than a month left until Election Day. When Barrett is confirmed, she will be the third Justice appointed to the Supreme Court by Donald Trump, after Neil Gorsuch in 2017 and Brett Kavanaugh in 2018, thus increasing the supposed conservative majority on the court to 6-3. By comparison, Barrack Obama, George W. Bush, Bill Clinton and George H.W. Bush each got 2 Supreme Court nominees confirmed during their entire terms in office. When looking at appointments to federal courts, the numbers stand out as well: in just under 4 years in office, Trump has appointed, with the help of the Republican majority in the Senate, 218 federal judges. Compare this to the 329, 327 and 378 federal judges appointed by Obama, G.W. Bush and Clinton respectively, over their entire 8 years in office (Judgeship Appointments by President, 2020). Lifetime judicial appointments seem to have become one of the main aspects of Republican strategy, as Mitch McConnell has stated: “I think lifetime appointments – not only to the Supreme Court but to the circuit courts – are the way you have the longest lasting impact on the country” (Politico).
For Trump, getting Barret confirmed means making sure that any case pertaining to the election results which comes before the Court will be resolved in his favour, as he has repeatedly and very candidly stated: “I think it [the election] will end up in the Supreme Court and I think it’s very important that we have nine Justices” (NYT). In another press conference, he said “we need nine justices. You need that. With the unsolicited millions of ballots that they’re sending, it’s a scam; it’s a hoax” (The White House 2020).
It has been almost 20 years since the infamous Bush v Gore 5-4 Supreme Court ruling which effectively handed the presidency to the Republican candidate. The story of that election campaign was filled with ballot issues, accusations of voter fraud, street protests and complaints about unwarranted judicial interference in elections. Therefore, it serves as the perfect handbook about what could happen in the following two months: a contested election decided by the highest court of the land.
In 2000, it became clear that the winner would be decided by Florida’s 25 Electoral College votes. The problem was that in this state, as in the rest of the country, the election had been very close (just 537 extra votes for Bush), with 60,000 undervotes out of 6 million ballots cast. This triggered a mandatory manual recount in several counties. The Gore campaign also started contesting results in several other counties where there had been reports that old, faulty voting machines had not functioned properly and were thus registered as undervotes by the automated counting machines (people voted by punching a whole in the ballot next to their preferred candidate). The Republicans immediately started fighting this process in the courts, with lawsuits eventually reaching the Florida Supreme Court. On December 8, in a 4-3 decision, the Florida Supreme Court ordered a state-wide recount, arguing that all votes should be counted based on the intent of the voter. The next day, the United States Supreme Court issued a stay, bringing the recount process to a halt. On December 12, the US Supreme Court issued two separate rulings:
(1) A 7-2 ruling which stated that Florida’s Supreme Court decision to count votes based on the “intent of the voters” was “unquestionable as an abstract proposition and a starting principle”, but that it required “specific standards to ensure its equal application”, under the Equal Protection Clause established by the Constitution (Strauss 2001, 740). This meant that the votes should be counted, but only if the same standard was applied in the recount process in all Florida counties.
Most authors agree that at this point, the correct way forward was to allow Florida’s Supreme Court to offer a separate decision setting up uniform vote-counting standards and rules, as Justices Souter and Breyer suggested (see Strauss 2001; Klarman 2001; Balkin 2001). Instead, what the Court ended up doing was to issue another ruling, which stated that:
(2) It was already too late for Florida’s Supreme Court to establish uniform standards, because any recount would go over the December 12 federal statute deadline by which states should had already decided who their electors would be, in time for the December 18 Electoral College meeting in Washington, DC that formally elects the President. The problem here is that the December 12 deadline was not compulsory to the states. The 5-4 Supreme Court majority simply stated that the Florida legislature would want to take advantage of this deadline. This way, the Supreme Court put an end to any recount and essentially made George W. Bush the 43rd President of the United States.
Now, given that the US Constitution is the oldest such document in the world, it is reasonable to assume that the nine Justices whose difficult task it is to interpret and apply its ambiguous provisions to present conditions will be influenced by their own ideological preferences. In fact, this is why the media assumes in advance what each Justice’s position would be on a given topic, such as abortion or states’ rights. Americans are accustomed to this. However, it is highly detrimental to the Court’s standing when its members go beyond ideological preferences and put partisan politics above legal considerations and precedents they themselves established (Klarman 2001, 1725). The 5-4 ruling was not only perfectly split along partisan lines, it was also inconsistent with several Justices’ established judicial and political philosophies. Conservative Justices such as Antonin Scalia, William Rehnquist or Thomas Clarence, known for their staunch defence of states’ rights, judicial restraint and originalism when interpreting the Constitution, argued against allowing a state court to interpret state law and issue state-wide electoral guidelines. The Court’s reputation was badly damaged by what was rightly seen as a purely politically motivated decision of the conservative majority on the court to have a Republican president who would appoint conservative Justices when they chose to retire (conservative Justices Sandra Day O’Connor and William Rehnquist did retire under George W. Bush, though only in his second term).
In his 2004 article, Michael Klarman was of the opinion that Bush v Gore would not damage the Court’s legitimacy too much because half the country would oppose it whereas the other half would support it, even though in private they might admit the Court went too far (2001, 1761). The reason for this, Klarman says, is that a presidential election like the one in 2000 was unlikely to occur during the lifetime of anyone then living and the nation would therefore soon move on (2001, 1750). If the facts had remained the same, Bush v Gore might have remained an unfortunate footnote in American history, but this has not been the case. Just 16 years later, Donald Trump also became President after losing the popular vote, this time by 3 million votes. And in pandemic-struck 2020, the probability of a contested election is even higher: simply replace Florida’s faulty voting machines with the 76 million mail-in-ballots that have so far been requested by voters (NYT) and add the confusion about counting procedures and worries about rejected ballots to the mix (USA Today). Another Supreme Court ruling split along partisan lines would discredit the court for more than a generation.
Mail-in-ballots further increase the risk of a disputed election, not because they are inherently fraudulent, as Donald Trump claims, but rather because they have become politicized. Because the President has repeatedly discouraged his base from voting by mail, most mail-in-ballots will contain Democratic votes. These take longer to count than in-person votes, therefore it is likely that on Election Night we will first see a Trump victory and a few days later Biden might overtake the President as the ballots sent by mail get counted. If Trump loses his lead, we will certainly hear talk about widespread voter fraud. Just consider what happened in the 2004 Washington State Gubernatorial election, when 2/3 of all ballots were cast by mail. Even after litigation and two unanimous Washington Supreme Court rulings, the Republican candidate still blamed the ‘political makeup of the Washington Supreme Court’ for his loss (Foley 2016, 316). That candidate eventually conceded, whereas Donald Trump has refused to say whether or not he will accept the election result if it is not in his favour.
The Court’s Strategy
Chief Justice John Roberts, appointed by George W. Bush in 2005, is known to be a consensus-builder on the Court. He has always tried to convince as many of his colleagues to join the majority opinion and therefore avoid – as much as possible – the perception that the Court is partisan. He has oftentimes joined the liberal minority in crucial cases, such as the constitutionality of Obamacare or abortion rights, in what critics have called “strategic votes” that maintain the Court’s credibility (VOA). And he has been very vocal in his defence of judges, saying that “we do not have Obama judges and Trump judges, Bush judges or Clinton judges” after President Trump called a federal judge who had ruled against him “an Obama judge” (BBC News). It seems highly likely that Roberts will try to keep the Court out of any judicial dispute regarding the election. One way to do this is to simply not take any case related to the election: “there is no requirement that the US Supreme Court get involved in the next disputed presidential election. Nor is there a requirement that the Court stay out of the fight” (Foley 2016, 307). There is only the so-called “rule of four”, an informal rule by which the agreement of only 4 out of the 9 Justices is needed to take up a case. The confirmation of Amy Barret on the Court might disrupt Roberts’ plans as she might be in favour of the Court arbitrating a potential election dispute.
Another course of action would be for the Democrats in the Judicial Committee to ask judge Barrett if she will recuse herself from any case related to the election once on the Court. There is precedent for recusals on the Supreme Court, with Justice Elena Kagan recusing herself from several cases, as she had been solicitor general in the Obama Administration before joining the Court (NPR). In the event of a 4-4 ruling, the decision of the lower court would apply. Barrett’s recusal could create a split between the President and congressional Republicans led by Mitch McConnell. Trump’s absolute priority is having a secure majority in the Supreme Court which would decide the election in his favour, whereas McConnell could settle for a Democrat President for the next 4 years, given that control of the courts for at least a generation has already been achieved.
If the election is close, the Supreme Court will have one of its most difficult tasks in the coming two months. Given the Bush v Gore precedent, Chief Justice John Roberts will try to steer his colleagues as far away from the election as possible, but that may prove to be beyond his powers. The Court’s credibility rests on the shoulders of Justice Amy Coney Barrett, and also on those of the American people: a clear mandate given to either candidate would spare the Supreme Court of the ordeal of having to decide yet another election.
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