The Supreme Court’s clear message to President Trump: Stop

9 min readDec 12, 2020

During the past four years, President Donald Trump has challenged the integrity of the Supreme Court and tried to drag the justices into the legal muck with him.

His arguments have pushed the boundaries of the law and his assertions have tested the impartiality of individual justices. But Trump’s meritless attack on the November election and his loss to Joe Biden in a brazen lawsuit initiated by the Texas attorney general brought the court into a wholly new realm.

The high court slapped down the case promoted by Trump on Friday, three days before the Electoral College will meet to cast votes for Biden as the winner of the November election, with no noted dissents.

As such, the court’s justices, six of whom were appointed by Republican presidents, three by Trump, have separated themselves from the pattern of hard-core partisans who were asking the court to use baseless claims of widespread voter fraud to disenfranchise millions of voters.

Texas Attorney General Ken Paxton and Trump had persuaded a group of 18 other Republican state attorneys general and 126 Republican members of Congress to sign on to arguments that would have reversed the will of voters in Pennsylvania, Georgia, Michigan and Wisconsin.

If the justices had not rejected the request from Texas and other Republican-led states, they would have defied their own precedent and compromised any notion of neutrality.

For the Supreme Court itself, there has always been a question of how it emerges from Trump’s legally fraught four years. Many of his policy initiatives — and some of his personal financial dealings — were subject to lawsuits.

And the President routinely suggested that once a case reached the conservative-dominated bench, he would prevail. His Twitter posts and other rhetoric have constantly undermined the notion of neutral judges. He implied Democratic appointees would automatically rule against him and Republican appointees would side with him.

On Friday afternoon, a few hours before the justices’ order in Texas v. Pennsylvania, Trump tweeted, “If the Supreme Court shows Great Wisdom and Courage, the American People will win perhaps the most important case in history and our Electoral Process will be respected again!”

He had pushed for swift Senate confirmation in October of his third appointee, Amy Coney Barrett, to succeed the late Ruth Bader Ginsburg, saying the court might end up deciding the election. (Barrett did not recuse herself from the Texas case.)

Before Trump brought the country to this point on the election, his policy agenda had bitterly divided the nine justices, such as on the travel ban that affected majority-Muslim countries and his attempt to end the “Dreamers” program for young immigrants who came to the US without proper papers.

Trump prevailed on the first, in 2018, and lost on the second, just this year. The administration generally did better in the early years, as the court majority soon grew frustrated with the Trump team’s failure to comply with procedural norms.

In opinions written by Chief Justice John Roberts, the court found that the administration contrived a rationale for a proposed citizenship question on the 2020 census and, separately, failed to justify its rollback of protections for “Dreamers” in the Obama-sponsored Deferred Action for Childhood Arrivals, or DACA, program.

But Trump could usually count on two or more justices on the right-wing to endorse his positions.

In the election case, not a single justice expressed any openness to the Texas and Trump assertions of election irregularities. Friday night’s order was unsigned.

The only other comment in the court’s action may be mainly of interest to the legal community, rather than relevant to the election results. In asking the justices to exercise its “original jurisdiction, Paxton tried to vault over lower courts and brush aside rulings against the President and his allies. Only Justices Samuel Alito and Clarence Thomas wrote a separate statement saying they would have given Texas permission to file the case. But they also said they would not have granted any claims.

The substance of the case aside, the sloppiness of some of filings might have generated additional frustrations for the justices. The apparent haste in which many were put together reinforced the overall weakness of the arguments. A brief from GOP states that included Louisiana spelled it “Lousiana.” The filing from GOP lawmakers placed Republican Rep. Jeff Van Drew of New Jersey from South Carolina instead. Advocates for the “New California” and “New Nevada” states, siding with Texas, repeatedly misspelled the name of current California Gov. Gavin Newsom.

Trump vs. The Roberts Court

Over his tenure, Trump has split the high court and put Roberts on the defensive.

After Trump derided a judge who ruled against him in November 2018 as an “Obama judge,” Roberts issued a statement: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

The Roberts Court majority has sided with the President’s positions more often than not, particularly on pro-corporate, anti-immigrant, and conservative religious liberty claims. But there have been recent high-profile losses, including the DACA case this year, that have drawn Trump’s wrath on Twitter.

The administration may be headed for another. Based on the justices’ comments during arguments over the Affordable Care Act in November, Trump may soon lose his attempt to kill Obamacare. During arguments, Roberts expressed frustration that opponents of the law that has brought health insurance coverage to 20 million more Americans had failed to end it legislatively and were asking the judicial branch to do it for them.

Irrespective of whether the justices ruled for the administration or its challengers, Roberts took pains to signal the justices’ independence.

“We should celebrate our strong and independent judiciary, a key source of national unity and stability,” Roberts wrote in his 2019 year-end message. “But we should also remember that justice is not inevitable.”

Texas and its supporters had invoked the 2000 Bush v. Gore case, in which the Supreme Court cut off Florida recounts and effectively declared then-Gov. George Bush the winner of Florida’s decisive electors over then-Vice President Al Gore.

That dispute, arising from a truly tight race and a state-certified 537-vote margin for Bush, worked its way through lower courts and offered grounds that differed dramatically from the Texas effort. Still, Texas warned that the 2020 “electoral irregularities exceed the hanging-chad saga of the 2000 election” and “preclude knowing who legitimately won the 2020 election.”

For the Supreme Court of 2000, Bush v. Gore came down to a difficult 5–4 vote, coincidentally issued 20 years ago on Saturday. Justices on both sides later expressed regret that they were dragged into it.

For the current Supreme Court, considering whether to join the Trump turmoil, it wasn’t close.

The Supreme Court on Friday rejected a bid from Texas’ attorney general — supported by President Donald Trump — to block the ballots of millions of voters in battleground states that went in favor of President-elect Joe Biden.

The court’s order, issued with no public dissents, to dismiss the challenge is the strongest indication yet that Trump has no chance of overturning election results in court, and that even the justices whom he placed there have no interest in allowing his desperate legal bids to continue.

The lawsuit, brought by Texas Attorney General Ken Paxton, a staunch Trump ally, sought to sue Pennsylvania, Michigan, Georgia and Wisconsin — which all went for Biden — and invalidate their election results. And this week, with his options narrowing, Trump, accompanied by the support of several Republican attorneys general and GOP lawmakers, cranked up pressure to have the Supreme Court weigh in.

“From a legal perspective, the fat lady has sung,” said Steve Vladeck, a CNN Supreme Court analyst and University of Texas Law professor.

Trump and his legal team — hamstrung by a series of coronavirus diagnoses among lawyers who had traveled across the country advocating on behalf of Trump’s case — have for weeks pushed increasingly desperate appeals and baseless conspiracy theories about his second term being stolen.

“The Supreme Court really let us down. No Wisdom, No Courage!,” Trump tweeted around midnight. Mike Gwin, a spokesman for Biden’s campaign, said the decision was “no surprise.”

Paxton, calling the court’s order “unfortunate,” vowed to fight on.

“I will continue to tirelessly defend the integrity and security of our elections and hold accountable those who shirk established election law for their own convenience,” he said in a statement.

Republican election lawyer Ben Ginsberg said Trump’s crusade to undermine the election’s results through rhetoric and court challenges “put a huge stress test on our democracy.”

“The Republicans who did follow Donald Trump really have an obligation now to make the country strong again, to heal the chinks that Donald Trump tried to put in the foundation of the country and the democracy,” Ginsberg told CNN’s Wolf Blitzer on “The Situation Room.”

Texas denied for lack of standing

The court’s order Friday night was unsigned, and court did not provide a vote count, but there were no dissents to the order made public.

In its short order, the court said that Texas had not demonstrated that it had the legal right to bring the suit because it had not demonstrated a “judicially cognizable interest in the manner in which another State conducts its elections.”

The order states: “The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.”

In a statement accompanying the order, Justices Samuel Alito and Clarence Thomas said they would have allowed the case to be filed, but would grant no other relief.

“Even Justice Thomas and Alito, who might otherwise have been sympathetic to these challenges, went out of their way to express that they would grant no relief on the merits,” Vladeck said.

“Not only did the Court reject Texas’s effort to challenge the results in four battleground states, but it did so on a ground that will prevent any other states from doing so,” Vladeck added.

Another big loss for Trump

For the past five weeks, federal and state courts have rejected most of Trump’s attempts thoroughly.

Hastily-written filings have contained a multitude of elementary errors. Many of the pro-Trump arguments hinged on what was ultimately hearsay or conjecture. And in many of the cases, Trump backers have said they don’t have evidence proving their allegations yet, but want to review ballots or confidential elections data more closely to see if they can find proof of fraud.

And though Trump has refused to move on, those closest to him — including the legal team and his family — are working on their next steps.

Multiple sources told CNN earlier this week that Trump’s legal team and inside what remains of his campaign staff have been sensing that efforts to overturn or delay the results of the election are coming to an end. White House staffers are resigning or are out the door, and members of Trump’s Cabinet have also begun meeting with their Biden administration counterparts.

First lady Melania Trump, meanwhile, has begun overseeing shipments of family furniture and art to Mar-a-Lago. And Ivanka Trump and Jared Kushner are in the final stages of purchasing a plot of land within a Miami enclave known for its privacy and high net worth residents.

Presidential pressure

Hours ahead of the court’s decision, the President called on the Supreme Court to intervene in the election, but seemed to acknowledge that a Biden administration is on its way.

“Now that the Biden Administration will be a scandal plagued mess for years to come, it is much easier for the Supreme Court of the United States to follow the Constitution and do what everybody knows has to be done. They must show great Courage & Wisdom. Save the USA!!!” Trump tweeted Friday morning.

Each of the four battleground states targeted by the lawsuit — Georgia, Michigan, Pennsylvania and Wisconsin — issued blistering briefs on Thursday, with Pennsylvania officials going so far as to call the effort a “seditious abuse of the judicial process.”

And although the case started off with Texas challenging four states, it grew into a dispute featuring some 19 Republican attorneys general siding with Texas and 22 Democratic-led states and territories supporting the battleground states that Biden won.

In addition, 126 House Republicans signed on to an amicus brief in support of Paxton’s motion, including Minority Leader Kevin McCarthy.

Still, several Republican lawmakers in Washington slammed the basis of the suit, citing federalism concerns and saying Texas shouldn’t have a say in how other states hold their elections.

The Supreme Court’s clear message to President Trump: Stop

Trump vs. The Roberts Court

Texas denied for lack of standing

Another big loss for Trump

Presidential pressure

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