In the weeks leading up to January 6, 2021, the Supreme Court of the United States turned away a craven, Republican-led effort to overturn the results of the presidential election in states Donald Trump lost to Joe Biden, but the justices did not exactly shine as guardians of democracy. In a one-page order that was only a few sentences long, they simply rejected the gambit and called it a day. They did not, as high-powered Supreme Court litigator Tom Goldstein had suggested, rise to the occasion to confront “this extraordinary, dangerous moment for our democracy”—one in which a sitting president and his enablers “have firmly convinced many tens of millions of people that the 2020 presidential election was stolen.”
When those legal maneuvers failed, and the losing candidate’s supporters resorted to force, taking the Capitol by storm and threatening the peaceful transfer of power, Goldstein issued a second call for the justices to speak up with one voice and reassure a nation on edge that its choice for president was indeed the “validly elected president.” As part of a coequal branch of government that deals in law and facts, the high court could set the record straight by “issuing an opinion that contains a straightforward description of reality,” Goldstein noted. “Speaking unanimously now obviously will not fix everything,” Goldstein continued the night of January 6. “But there is a part of the country aching for someone they trust to explain that our democracy functioned as it should, so that the results can be trusted and should be respected.”
The Supreme Court did no such thing.
Four years ago seems like ancient history, but the silence during that dark hour for democracy is instructive as the country braces for another frenzied presidential cycle in which the Supreme Court can be expected to get involved, sometimes without saying a word, in matters big and small. And the specter of a too-close-to-call election yet again looms large in the minds of people who simply don’t trust the institution to serve as a bulwark against antidemocratic forces.
That distrust is justified: If nothing else, the Court’s actions in the past year alone have only made it clearer that a majority of the justices, three of whom Trump installed, don’t so much view him as a threat to free and fair elections—let alone the mastermind who engineered a scheme that relied on “deceit to target every stage of the electoral process,” as special counsel Jack Smith wrote in a filing last month, framing his criminal case against the ex-president.
The indifference of Chief Justice John Roberts and his supermajority to the near-breakdown of the delicate system ensuring democratic continuity all but gave away the game; a president refusing to give up power, even as his followers trashed the seat of our national government, was not enough to move them. By declining to impose consequences, they showed their disinterest in policing insurrections, election denialism, and the fire hose of lies and fabrications poisoning people’s faith in the democratic process, both then and now. “In a case like this one,” Roberts wrote in his widely derided opinion cloaking Trump in broad immunity from prosecution, “focusing on ‘transient results’ may have profound consequences for the separation of powers and for the future of our Republic.”
The Supreme Court, in other words, would like to move on, let the past stay in the past, and focus on the future. But that future is now: As Trump openly boasts that he and House Speaker Mike Johnson have a “little secret” pertaining to the election, whatever that means, and as some of the loudest voices in Trumpworld flood the zone with falsities and misdirection about the election, voters and their communities would be wise to do their civic duty, brace for the worst, and hope our institutions hold. As a newly freed Steve Bannon said on his War Room podcast: “Remember, November 5—it doesn’t end there, it begins there.”
That postelection hellscape hasn’t taken shape yet, but it’s worth keeping in mind because judges up and down the chain will help mold the universe of facts and fiction that people will tell themselves about the 2024 election. By one count, more than 100 cases are ongoing.
One reason Republican lawyers have been so busy challenging voting procedures that make it easier for people to vote may not be to win in court at all but “to preemptively cast doubt” on the outcome of the presidential contest, as CNN’s Tierney Sneed reported this week. Democrats and voting rights advocates, for their part, are also busy defending access to the franchise. Just about everything has become mired in litigation—from mail-in ballot rules and voter purges to the legal authority of election officials to second-guess who won a given contest. And no matter how judges rule, their edicts will become fodder for postelection narratives.
For now, at least, the Supreme Court is shaping that reality at the margins. This week alone, again without much of an explanation, the justices took three actions bearing on the presidential election—one more consequential than the others, but all of them reinforcing the popular wisdom that every vote is in play. And with the lion’s share of election disputes concentrated in battleground states, there’s no telling how the Court’s signals will fuel mischief on the ground. In Pennsylvania, where a critical case is still pending resolution by the justices, Trump and those around him are worrying election officials with unproven claims that fraud is already rampant.
First up were a pair of orders rejecting pleas from Robert F. Kennedy Jr. to be removed from the ballots in Michigan and Wisconsin—a Hail Mary that was destined to fail because, as one judge astutely noted, the erstwhile candidate had made no such effort in other states, including New York, where he was insisting he be kept on the ballot. “It is hard to imagine how excluding Plaintiff from the ballot could protect him from irreparable reputational damage in one state but cause the same damage in another,” the judge wrote of Kennedy in September in the Michigan case.
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