Donald Trump stood no chance in front of a conservative Supreme Court. Here's why.
WASHINGTON – The Supreme Court's refusal to help Donald Trump change the result of the 2020 election should come as no surprise for the very reason the president hoped to win the case: The court is conservative.
That means the three justices who owe their seats on the nation's highest bench to Trump, as well as others nominated by Republican presidents, profess adherence to the Constitution and the precise text of federal statutes. They don't just make stuff up.
So when Texas, backed by Trump and a cadre of Republican state attorneys general and members of Congress, asked the court to block election results from Georgia, Michigan, Pennsylvania and Wisconsin, it stood no chance of prevailing.
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"The hallmark of conservative jurisprudence is respect for established law," said Michael McConnell, director of the constitutional law center at Stanford Law School and a former federal appeals court judge appointed by President George W. Bush. "No one should be surprised that the justices, like the Trump-appointed lower court judges in all these election cases, followed the law."
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The law took them invariably in one direction, for a number of reasons:
• Texas lacked legal standing because it "has not demonstrated a judicially cognizable interest in the manner in which another state conducts its elections," the court said in its brief order Friday.
• The state sought to leapfrog lower courts by framing the case as one in which the Supreme Court has "original jurisdiction."
• Principles of federalism dictate that states decide for themselves how to run their elections.
• Governors already had certified the votes, making the challenge tardy, if not moot.
• Millions of voters could have been disenfranchised if their legally cast ballots were discounted.
"Texas is asking the Supreme Court to take up a case in which it would have to find its own facts, in which it isn’t remotely obvious why Texas is the right plaintiff, and in which time is of the essence," said Stephen Vladeck, an expert on federal courts at the University of Texas School of Law. "The posture in which the factual and legal arguments were presented necessarily made it impossible for those arguments to be taken seriously, even by the justices who might otherwise have been inclined to do so."
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Associate Justices Clarence Thomas and Samuel Alito, for instance, have urged the court to exercise more often its authority to hear disputes between states without requiring them to start in lower courts. But the Supreme Court still has discretion to deny outlandish requests.
Thomas and Alito said Friday they would have granted Texas' request to make its case, but "would not grant other relief."
"They may be conservative on legal and social issues, but they recognize that Texas’ claim was political theater, not a valid legal action, and that it would be impossible for the Supreme Court to serve as a trial court to evaluate allegations of election fraud in multiple states," said John Bellinger, who served during Bush's administration as legal adviser at the State Department. "To have taken the case would have delayed the transition and caused a constitutional crisis."
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What sets the justices and other federal judges apart from elected officials is their life tenure, which insulates them from political pressure. While scores of GOP officials saw political benefit in siding with Trump, judges and justices had no similar reasons.
"Politicians ... will sometimes take truly awful positions on legal issues for political reasons. Judges have a different structure of incentives," said Ilya Somin, a law professor at George Mason University's Antonin Scalia Law School. "They don’t have the same need to cater to a political base or to the whims of Donald Trump. And they have stronger incentives to care about the precedent they are establishing."
Thus it was that when Trump's lawyers urged the Supreme Court this year to block Congress and New York prosecutors from gaining access to the president's financial records, Associate Justices Neil Gorsuch and Brett Kavanaugh, Trump's first two nominees, agreed that the president is not immune from criminal investigation.
Trump's third nominee, Associate Justice Amy Coney Barrett, assured the Senate Judiciary Committee in October that she would not be beholden to Trump if called upon to weigh in on the election.
"I certainly hope that all members of the committee have more confidence in my integrity than to think that I would allow myself to be used as a pawn to decide the election for the American people," Barrett said.
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Similarly, Associate Justices Ruth Bader Ginsburg and Stephen Breyer joined the court's unanimous 1997 ruling that President Bill Clinton could not sidestep a sexual harassment lawsuit brought by former Arkansas state employee Paula Jones.
"To be sure, justices may often have views on legal subjects that lead them to understand the law one way or another," said Eugene Volokh, a libertarian professor at UCLA School of Law. "But they try hard to honestly apply their understanding of the law, without regard to which political figures will benefit from a decision."
Jonathan Adler, a professor at Case Western Reserve School of Law, put it succinctly:
"Law matters," he said. "Judges are not politicians in robes."