The Winner's Curse, Supreme Court Edition: Do Roberts and Gorsuch Want to Engage in Self-Neutering?
by Neil H. Buchanan
Although politicians and the media are understandably focused on the ongoing counting of votes in various key states, I continue to believe that nothing is going to stop the coup that Donald Trump has been advertising for years. He has already filed several of the lawsuits that will work their way up to his stacked Supreme Court, and in the end, it will not have mattered whether Biden won by a little or a lot. It was always going to end up in the hands of the Supremes.
After all, even if Trump had lost Texas, Florida, and Ohio, there are fiercely pro-Trump Republican majorities running those state legislatures, supplemented by Republican governors. Those states could have decided (and Arizona, and possibly Georgia, might yet choose) simply to award their electoral votes to Trump, no matter who won the votes in their states.
In addition, the key swing states of Wisconsin, Michigan, and Pennsylvania are all poised to see their legislatures attempt to validate the legislatures-only theory (which Professor Dorf again ably debunked earlier this week), under which their Republican-dominated state legislative branches ignore their Democratic governors and simply announce that they have the power to appoint Trump's slates of electors -- again, the voters be damned.
Any or all of those moves will land in the Supreme Court, and they are much more bold than the current attempts to stop vote counts prematurely. Indeed, based on where things stand now, it appears that the courts will be essentially powerless to stop Biden from seeming to have amassed at least 270 electoral votes. I say that this "appears" to be the case because the Court could yet surprise us with a rule that says that partial counts on Election Day are the definitive outcome; but in any case, we are already in the process of litigating everything.
Rather than predict what this Supreme Court will do, at least in the usual "Supreme Court watcher" mode that so many law professors love, here I want to ask a different question: Do any of the six Republican appointees to the Court want their roles to matter in the future, or are they willing to expend all of their institutional importance now in the service of something that they will not be able to undo? That is, are at least some Supreme Court justices interested in continuing to be relevant?
Three weeks ago, in "The Winner's Curse in an Autocratic Power Grab," I asked whether ambitious Republican politicians understand that they are in the process of destroying their own dreams for greater power. All of the people who see themselves as future presidents (from familiar names like Ted Cruz to grasping upstarts like South Dakota's bizarre governor Kristi Noem) have eagerly licked Trump's boots for years, apparently in the belief that to do anything less would doom their future political prospects. The idea, of course, is to position oneself to be the front runner in the next presidential campaign.
But this is almost touchingly naive. Do they honestly think that all they have to do is to play along with Trump for a bit longer and then go back to the usual routine of making appearances at county fairs in Iowa, on the way to winning the Republican nomination in 2024 or 2028? Trump will, for as long as he is alive, demand to be the kingmaker. And even if he does not manage to get a third term for himself, he will certainly not stand back and simply let a bunch of losers ask the "disgusting" voters to choose Trump's successor -- especially while Trump has family members who would more reliably do what he wants them to do as President Trump-the-Younger.
And in a world where Republicans will continue their efforts to make political survival even more difficult for Democrats, this will not leave much for even powerful Republicans in the Senate and House to do. After all, the party did not even bother to adopt a platform at this year's nominating convention, simply saying, "Trump wants that? That's what we want, too!"
Once an autocracy is created, the roles that people have spent lifetimes seeking and securing suddenly become unimportant. Admittedly, much of the "work" of legislators is empty and pointless, and back-benchers lead particularly boring work lives. Not that many of them would walk away, but they would at least notice that all of their assumptions about political strategies and personal power have changed completely.
That, in any case, was my argument about elected politicians: being even on the winning side of a dictatorial coup would be a curse -- better than being on the losing side, but still a curse. But what of the politicians in robes?
According to the mythology of judicial restraint, judging at levels below the Supreme Court is already supposed to be pretty boring. Precedent exists, interpretive canons guide decision-making, and the judge does her duty without thought to her own preferences or ideology. If one (wrongly) believes in pretty much any brand of originalism, even the Supreme Court's job is pretty dull, because the answers to every legal question are already determined (and have been for one hundred fifty or two hundred thirty years). The only important thing is to fight back against the Living Constitutionalist infidels and savages, preventing them from imposing human error on the system.
Now that the Supreme Court is made up of a super-majority of movement conservatives, that should supposedly mean that the Court's work will become dull as dishwater. Yes, there will be the thrill of finally issuing the rulings that they have wanted to issue forever, but that is simply a matter of running through a wish list. Once the wishes are all fulfilled, what is left to do?
All of that, of course, is based on a comical misrepresentation of judicial decision making, as even the most tentative legal realist understands. In reality, even under a Supreme Court that is going to do all of the top-line things that movement conservatives have long desired, being a Supreme Court justice matters and can be interesting. As Court analyst extraordinaire Linda Greenhouse noted in a column in today's New York Times, there are various ways in which the six Republicans on the Court can proceed, and they might not all agree on the best path.
But even that subset of interesting work all but goes away in an autocracy. The Court's conservatives would know that, if they displease the dictator, they would quickly be ignored, overridden, or replaced. Having a place in our system of checks and balances means that there still must be checks and balances, and Trump has made clear that he does not like either of those things.
To make the point as simply as possible, a system in which the executive wields absolute power is not a system in which the Court gets the last word. Even if a sitting justice sees this clearly, however, it might nonetheless be tempting to go along with Trump's attempted coup. He is the leader of your tribe, and that Biden guy is a "tool of the radical left," right?
So let us run through the six current Republican-appointed justices:
-- John Roberts: The Chief Justice's reputation as an institutionalist is overblown, and his willingness to disappoint his patrons always seems to be more a matter of saving them from themselves or being strategic, or both (e.g., moving the latest challenge to the Affordable Care Act until after Election Day). Nonetheless, Roberts seems the most likely among the six to push back against an autocratic power grab, simply because he believes that the Court is important and should remain so. But do not forget that he holds his current job as payback for being instrumental in the Bush v. Gore fiasco, or that he wrote the majority opinion in Shelby County v. Holder.
-- Clarence Thomas and Samuel Alito: Are you kidding? These guys are all in for the power grab, sticking it to the libs, and so on. They would never say no to Trump.
-- Brett Kavanaugh:
"This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election. Fear that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons. And millions of dollars in money from outside left-wing opposition groups."This is a circus. The consequences will extend long past my nomination. The consequences will be with us for decades. This grotesque and coordinated character assassination will dissuade competent and good people of all political persuasions, from serving our country."And as we all know, in the United States political system of the early 2000s, what goes around comes around."
It is coming around, and Kavanaugh cannot wait. See also his ridiculous concurrence in the recent case from Wisconsin, invoking and mangling Bush v. Gore.
-- Amy Coney Barrett: From Greenhouse's column this morning:
"We may not yet know who won the presidential election, but everyone knows that the Supreme Court now has a conservative 6-to-3 majority. And that the Senate’s Republican majority’s hardball tactics, driven by blatant cynicism, achieved that result during an amazingly compressed period of not even six weeks — from Justice Ruth Bader Ginsburg’s death in mid-September until Justice Amy Comey Barrett’s installation a week before Election Day.
"For most of the period, culminating with the new justice’s klieg-lit nighttime photo op with the president on what I’ve taken to calling the White House’s Mussolini balcony, the question was, 'Can this really be happening?'"
Coney Barrett not only could not bring herself to commit to recusing from cases that Trump had said he will use to carry out his coup, but she could not even say no to being a campaign prop. She is all in. (Kudos to Greenhouse for coining the term "Mussolini balcony.")
-- Neil Gorsuch: As my colleague Sarah Lawsky (a tax professor at Northwestern's law school) pointed out to me, this could all come down to Gorsuch.
On one hand, that is terrible news, because even though his confirmation hearings (to fill the seat that Senate Republicans stole from Barack Obama) were relatively lifeless, this is a guy who was born into the conservative movement. He still apparently carries grudges against Democrats for pursuing corruption investigations against his mother when she was a cabinet member in the Reagan Administration. Even before then, he spent his undergraduate years seething at being a social outcast due to his political views, which led him to start a Dartmouth Review clone at Columbia. This is Kavanaugh without the anger management or drinking problems.
On the other hand, Gorsuch might just be able to look past all of that to see that his continued relevance in the world rides on not abetting Trump's coup. Note that I am not saying that Gorsuch would refuse to go along for reasons of principle, decency, or a belief in constitutional democracy. Perhaps he would have such thoughts, but that is too much to hope for. It is possible, however, that Gorsuch's own sense of grandiosity might push him in the other direction. He has seen the Chief become persona non grata in some Republican circles, and that would hurt. Still, ego is a powerful thing, and the prospect of a lifetime of kowtowing to Trump (of all people) might pull Gorsuch to the other side.
That is not to say that even a 5-4 Supreme Court decision against Trump would spare us from civil unrest and relentless undermining of the Biden Administration. But this is where we are now, hoping that a power-mad lunatic is prevented from stealing the presidency by at least two Supreme Court justices who are motivated by their own self-preservation to keep the rule of law alive for a few more years.
Do I feel less stressed out, now that Election Day is behind us? No, because this next round of insanity was always in the cards. The odds are against decency prevailing, but if there is a sliver of hope, it derives from the professional jealousies of two Republican career lawyers.