A Somewhat Optimistic View of the Possible Constitutional Crisis of 2020

Posted in: Politics

One of the magazines to which I subscribe sends out weekly emails summarizing the blur of recent events. The September 17 email arrived with this subject line: “… And You Know Next Week Will Be Even Worse!” The next day, Justice Ruth Bader Ginsburg died.

The majority of this column will discuss the potential chaos that faces the United States in the upcoming elections—chaos that could become much worse in the absence of Justice Ginsburg’s voice and vote. Before I turn to those issues, however, I will take a few moments to comment on the late justice’s life and work.

No Words Can Do Justice to Ruth Bader Ginsburg’s Impact on the World, But I Offer Here Just a Few, With Great Respect

The day that Justice Ginsburg died—less than three weeks ago—now feels like the distant past. In the time since then, many writers have offered profoundly moving tributes to the late justice. Here on Verdict alone, readers can find columns by my colleagues Marci Hamilton, Vikram Amar, and Joanna Grossman, while Joseph Margulies offered a helpful suggestion regarding what Justice Ginsburg’s admirers should do now.

Because I am a tax law scholar, my take on the Ginsburg legacy is unique. Her husband, Martin Ginsburg, was one of the greatest tax scholars that the world has ever known, and although Ruth Bader Ginsburg’s intellect alone surely would have led her in the right direction on any case, one could not help but notice an added dollop of insight in her decisions in tax cases.

Of course, most tax cases do not make news (unless they have something to do with Donald Trump’s criminal underpayment of taxes). True, the case that spelled the end of the discriminatory Defense of Marriage Act (U.S. v. Windsor) was in the first instance concerned with the estate tax, but it was ultimately an equal protection case (with Justice Ginsburg providing one of the five votes to invalidate the law).

In two much less publicized cases that I happened to follow, Justice Ginsburg’s tax analysis was impeccable. Writing in dissent in Comptroller v. Wynne, and breaking with her three more liberal colleagues to join the majority in Wayfair v. South Dakota, she showed that she understood tax law better than anyone else on the Court. Indeed, during oral arguments in Wynne, she left the respondents’ attorney completely unable to answer the most fundamental logical problem with his position. (Five of her colleagues, unfortunately, overlooked that glaring issue.)

Finally, it is worth remembering that the first case challenging the Affordable Care Act, NFIB v. Sebelius, upheld the constitutionality of the now-popular health care law, but that decision also dealt a serious blow to justice by allowing state governments to opt out of the expansion of Medicaid. Justice Ginsburg, joined only by Justice Sonia Sotomayor, wrote a brilliant dissent showing that the majority’s opinion was based on a silly formal distinction—and showing that the consequences of that decision were anything but silly to the millions of people who have been denied health care as a result.

The Election and the Supreme Court

But we know now that Donald Trump—who is incapable of not saying out loud the corrupt things that he is thinking—views Justice Ginsburg’s death as an opportunity to pack the Supreme Court with yet one more hyper-conservative appointee. Why? Because he knows that he is going to try to use the courts to reverse the people’s verdict against him in this year’s election.

Having another of Mitch McConnell’s pre-screened nominees on the Supreme Court—and to be clear, there is no reason that Senate Democrats should view Trump’s nominee as a flesh-and-bones human being, because McConnell certainly sees all of these people as interchangeable—could, indeed, make the difference in post-election litigation.

I should say, however, that the idea that Chief Justice John Roberts might have stood in the way of a Trump/Republican electoral power grab is farfetched, at best. Roberts has occasionally disappointed Republicans (in, most notably, NFIB v. Sebelius), but he has never strayed on any of the election-related cases that matter to his Republican patrons. Whether it is allowing states to impose racist voting restrictions, permitting the purging of voter rolls by Republican partisans, or paving the way for huge amounts of dark money to pollute the political system, the Chief has always been enthusiastically on board.

But what of Roberts’s vaunted role as a so-called institutionalist—fiercely protecting the reputation of the high Court so that it is not viewed by the public as overtly partisan? Well, what good is that reputation if one does not use it when it is most valuable? If Roberts signs on with his Republican-appointed colleagues in handing the election to Trump, even some non-Republican analysts will say that Roberts’s vote somehow proves that this was not a lawless power grab. That is the very definition of political capital, and the 2020 election is when it can be spent most effectively.

In the end, the Supreme Court will almost certainly have an opportunity to decide the 2020 election. Even if Trump’s latest nominee is not on the Court, a 5-3 ruling for Trump seems likely (meaning that, in fact, Justice Ginsburg’s presence would not have changed that particular outcome). But how can we prevent the Court from simply doing the bidding of Trump and the party that he has taken over?

Shining a Spotlight on Naked Dishonesty

We already knew that elected Republicans have no commitments that go any deeper than simply holding onto power. Their supposed reverence for federalist principles was never believable, their fiscal conservatism is a joke, and their opposition to Barack Obama’s supposed executive tyranny were immediately forgotten in 2017.

Were there any remaining doubt, Senate Republicans’ immediate “Just kidding!” flip-flop regarding the imaginary McConnell Rule—that Supreme Court seats must not be filled during an election year—was breathtaking in its shamelessness. Lindsey Graham whines about what big meanies Democrats were to the completely unhinged Brett Kavanaugh, and Mitt Romney somehow managed to say out loud without laughing that the Supreme Court has been too liberal for too long. Ted Cruz, for all of his other unforgivable character deficits, at least was bluntly honest in saying that people can try to get Republicans not to grab power, but Republicans will grab power anyway. Because they can.

Frequent readers of my columns here on Verdict know that I have long been predicting that, in one way or another, Donald Trump will contrive to stay in office indefinitely—and that Republicans will gladly help him to do so. (See, for example, one of my columns from this past June.) The question is whether there is sufficient remaining independence and nonpartisanship among Republicans, especially Republican appointees to the courts, to stop them from going along with a plot to end constitutional democracy as we know it.

As a mere legal scholar, I have little (if any) more impact on how this will play out than any other American does. What people like me can do, however, is at the very least make it clear just how brazen the Supreme Court would have to be to allow Trump to steal the election. And luckily for America, there are no non-brazen routes by which the Republicans could keep Trump (and themselves) in power.

To be sure, we all have seared in our memories the shamelessness of Bush v. Gore. There, the five justices who installed George W. Bush in the Oval Office were both brazen and somewhat sheepish. They were brazen in extending precedent in ways that it had never been extended before and especially in stopping the recount of votes.

The sheepish part (though brazen in a different way) was the blithe issuance of a one-time-only dictum: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” In other words, at least some of them were so embarrassed by their own decision that they wrote: Don’t quote us on this!

If anything, the Court today (even without a replacement for Justice Ginsburg) is more likely to throw off all restraint in the name of partisanship. Justices Sandra Day O’Connor and Anthony Kennedy are gone, after all. I am not, therefore, saying that I am confident that publicly shaming the justices will have any effect.

Even so, Supreme Court justices are uniquely committed to being seen as paragons of reason and virtue. One of the Court’s absolute worst recent decisions, Trump v. Hawai’i (also known as the Muslim Ban case), pretended to be based on precedent that prevented the Court from inquiring into the intent of the President, but even in that case, Chief Justice Roberts went to pains in his majority opinion to distance himself and his colleagues from the infamous Korematsu case, which approved of internment camps for Americans of Japanese descent during World War II. The five justices did not want to be judged by history as favoring a modern Korematsu. They will be so judged, but my point here is that they clearly tried to avoid that harsh historical assessment.

The more obvious it is that there is something seriously wrong with what they are doing, the more likely it becomes that one or more of the Court’s justices will look for a way not to be exposed as a fraud. At least, that is the hope.

The Steep Climb to Justify Stealing the Presidency for Donald Trump

As I noted above, Donald Trump says bluntly and openly that he is planning a heist, going so far as to tell everyone how he plans to steal the election. Rather than deny an article in the current issue of The Atlantic that laid out Trump’s scheme, Trump started to brag openly about it during his super-spreader campaign rallies.

Trump’s lawyers are planning a two-part strategy. First, he will have state legislatures that are dominated by Republicans purport to appoint Trump-loyal electors to vote in the Electoral College. In a few key swing states, Republicans hold the majority in both houses of the state legislatures while the governor is a Democrat. Because a key constitutional provision uses the term “legislature” instead of “government” when referring to states’ appointment of electors, Trump’s people think that they can simply bypass the unfriendly governors and have the Republicans in the statehouses give the electors to Trump, even after he has lost the popular vote in such states.

Fortunately, that gambit is completely untenable. As Grace Brosofsky, Michael Dorf, and Laurence Tribe demonstrated in a recent column on Dorf on Law, all of the relevant constitutional, statutory, and decisional law supports the conclusion that a legislature cannot act alone to appoint electors.

And if the Supreme Court wanted to ignore all of that? It would have to not only wipe away all of that law, but it would also have to reverse its own ill-begotten decision in Bush v. Gore. Trump himself would certainly be that brazen. Would the justices on whom he is relying on the Supreme Court be willing to go along with something so extreme?

The second part of the plan that Trump’s people are not bothering to deny is to get the election moved from the Electoral College into the House of Representatives, relying on the Twelfth Amendment and a rule that supposedly would deny Joe Biden the presidency even if he held a majority of the appointed electors. (That House election would give each state a single vote, irrespective of population differences.)

On that question, I joined Professors Dorf and Tribe in co-authoring a Verdict column last week demonstrating that the Twelfth Amendment simply does not mean what Trump’s lawyers say it means. Writing alone, I added further support to that conclusion in a follow-up column on Dorf on Law. At worst, Trump would have to win by winnowing down Biden’s appointed electors in the Electoral College, but he would not (except in the case of an actual tie) be able to move the election to the House.

Again, the Court could ultimately decide that the Twelfth Amendment means the opposite of what it actually means, but how brazen are they willing to be? They would, in fact, have to be doubly brazen, first deciding that the case is not a political question (which the Court should avoid) and then deciding that question in Trump’s favor.

Indeed, even Trump and the Republicans are not willing to push their own arguments to their logical extremes. After all, why would they limit themselves to those few states in which the governor is a Democrat and the legislature is dominated by Republicans? Why not take, say, Georgia out of the picture by having the gerrymandered Republican legislature and the Trumpist governor declare now that they will appoint Trump’s electors, no matter what the voters say? Arizona, Florida, and Iowa are all swing states in which the Republicans dominate state government. Why not remove all doubt that Trump will win?

For that matter, why is Trump bothering to make up outlandish and unsupported stories about fraudulent mail-in ballots? He spends incredible amounts of time making stuff up about the “rigged election,” which either means that he is afraid of simply letting everyone know that the election is already rigged in his favor or that it is not, in fact, yet rigged for him to his satisfaction.

The more the public sees that Trump and the Republicans are simply lying to try to hold onto power, the worse it is for Trump’s attempted coup. Why? Because public opinion still matters, even (especially?) to Trump.

And this is of particular concern for the Republicans who wear the robes of Supreme Court justices. They know that they can hand Trump the election if they decide to do so, but they would prefer not to do so without a good cover story. And the best way to deny them that cover story is for the voters to make the outcome lopsided and for legal scholars to keep up the drumbeat showing that the Court can only find for Trump by being breathtakingly partisan.

The public legitimacy aspect of all of this includes what the Democrats do as well. They are doing all that they can to remind the press and voters that the rule of law means something. More concretely, House Speaker Nancy Pelosi and her team are within striking distance of taking enough key seats in the upcoming election to guarantee that Trump would lose even if the Supreme Court were willing to defy the Constitution and throw the election into the House.

In the end, we should all be frightened by the fact that the election can be stolen if enough carefully placed Republican partisans—in the executive branch, in Congress, in state legislatures, and especially on the Supreme Court—are willing to turn this country into something that it has never been before. The good news is that the law and the public are opposed to Trump, and there might be just enough people on the Republican side who are unable to bring themselves to take away American democracy from our children and grandchildren.

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