It Is Not Normal For the Supreme Court to Decide an Election

 

Republicans, led by Ted Cruz, have given away the game. There has to be a ninth judge on the Supreme Court to decide the outcome of the upcoming election.  While Mitch McConnell played a game of appointment Fizzbin (the Senate should never confirm a Supreme Court nominee in an election year if the seat fell vacant in an election year,* it is the President's second term and the President and Senate are controlled by different parties), Cruz's argument is in blatant, irremediable conflict with the view that the Senate should never confirm a Supreme Court Justice in a Presidential election year.

Other Republicans (and Glenn Greenwald) promptly fell in line behind Cruz.  Before we let Republicans normalize this outrage, can we please consider what Cruz is saying?  He is saying in effect: 

1. If Donald Trump loses in November, he will sue to overturn the result.
2. He will probably offer a theory so implausible that John Roberts will not be able to swallow it, so we need a ninth justice to rule his way.
3. We should accept all of this as normal.

Other Republicans (with the exception of Lisa Murkowski) seem to be doing exactly the same thing. They are outraged at Trump's refusal to commit to a peaceful transfer of power.  But they are fine with him suing to overturn the election if he loses, and fine with packing the court to ensure that it will accept his most outlandish theory.  But if he proves to be too outlandish for Gorsuch and/or Kavenaugh, they will accept defeat.

We need to proclaim loudly and with outrage just how abnormal all this is.  

    Number of US Presidential elections to date: 57.  (This will be number 58).

    Number decided by the vote of the Electoral College without interference: 53.

    Number decided by Congress:  2.  (Adams/Jefferson and Jackson in 1800/JQA/Henry Clay in 1824).

    Number decided by a commission that included Supreme Court Justices: 1.  (Hays/Tilden in 1876).

    Number decided by the Supreme Court:  1 (Bush/Gore in 2000).

The one election decided by the Supreme Court was an Electoral College deadlock that all came down to one state -- Florida.  The margin in Florida was razor-thin, such that the margin of victory was less than the margin for error in vote counting.  Rather than see that matter go to Congress (which had gone very badly the two times it happened), the Supreme Court stopped the count and declared Bush the winner.  Many suspected them of nakedly partisan motives.  

Having the Supreme Court decide the election proved to be no improvement whatever over having Congress decide it.  Currently the polls point to a clear Biden victory.  On the other hand, his lead has shrunk within the margin of error in Pennsylvania and Arizona.  So I suppose it is possible that, despite a clear popular vote victory for Biden, the Electoral College may deadlock and everything come down to a very close vote in Pennsylvania.  And it is entirely plausible that Trump's recount theory will be complete and utter bullshit that Roberts simply won't be able to stomach.

It's also possible that Biden will win a clear popular and electoral victory.  

But the idea that it is, and should be, a matter of routine for the loser of the election to sue to overturn the result, or that such an expectation should govern the choice of Supreme Court Justices is an outrage that Democrats should proclaim from every hilltop.

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*A Democratic led Senate confirmed Ronald Reagan's nominee, Anthony Kennedy in 1988, the last year of Reagan's term, but the vacancy actually occurred in 1987.