Judges are highly political, but they aren’t exactly like other politicians.
Well, it’s done.
On Monday, members of the Electoral College formally cast their votes for the next president. Though these votes will not be officially counted until January 6, when Congress meets to formally declare the winner of the presidential election, there’s not a lot of suspense here. President-elect Joe Biden won enough states to carry 306 electoral votes and the presidency.
The dog that did not bark throughout this interminable post-election period is that the judiciary, despite being controlled by Republicans at the federal level, left Biden’s victory untouched. According to Marc Elias, the Democratic superlawyer who oversaw much of his party’s efforts to preserve Biden’s win, Trump and his allies filed at least 60 post-election lawsuits. They’ve lost 59 of these cases, and their one victory involved such a minor matter that it had little impact on the final vote tallies.
If you’re the sort of person who is inclined to trust Donald Trump, you’re probably very surprised by these developments. After the death of Justice Ruth Bader Ginsburg in September, Trump strongly implied that he would fill Ginsburg’s seat with someone who would help him steal the election. The election, Trump claimed, “will end up in the Supreme Court, and I think it’s very important that we have nine Justices.”
The Court did hand down several pre-election decisions that likely diminished Biden’s vote count around the margins by making it harder for voters to cast a ballot by mail (mail-in voters were especially likely to support Biden over Trump). And before the election, much of the Court’s right flank endorsed radical doctrinal changes that would have made it easier for Trump to steal a closer election. But the justices have largely stayed away from post-election lawsuits.
A much-hyped case seeking to prevent Pennsylvania from certifying Biden’s victory ended in a one-sentence order telling Trump’s allies to go pound sand. A similar case brought by the state of Texas was denied because “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.”
So what’s going on here? Why was Trump so wrong about his chances of seizing power by convincing the courts to overturn the election?
The answer is that Trump’s post-election lawsuits failed for a variety of interlocking reasons.
First, Trump and his allies just didn’t have very good legal arguments. In some cases, they brought penny-ante claims that couldn’t have changed the result of the election even if they prevailed. In others, they made factual claims that relied entirely on speculation — or even relied on conspiracy theories incubated on social media. In some cases, Trump or his allies made legal arguments that were the exact opposite of the arguments they made in other cases. There are no good legal arguments that could have justified tossing out the election results, and the clownishness of Trump’s legal strategy only drew attention to the weakness of his claims.
To be sure, judges are not immune to motivated reasoning, and it’s easy to find cases where highly partisan judges reached dubious conclusions that benefited their political party. But Trump’s lawyers gave the president’s would-be allies on the judiciary very little to work with if they hoped to craft a pro-Trump opinion that didn’t sound ridiculous. There are judges who place a thumb on the scales of justice, but even the most partisan judge can’t make a mouse weigh more than an elephant.
Second, Biden won a commanding victory over Trump. The president-elect won by a 4.5 percentage point margin, the largest victory since Barack Obama’s landslide in 2008, and the second-largest victory of the 21st century. Significantly, Biden won 306 electoral votes, meaning that partisan judges would have had to overturn the results in three states to steal the election for Trump.
In many of the pivotal states, Biden’s margins were harrowingly close — such as the tipping-point state of Wisconsin, which Biden won by only about 20,000 votes. But that’s many times more than the 537 votes that separated Republican George W. Bush and Democrat Al Gore when the Supreme Court threw the election to Bush in 2000.
Finally, members of the Supreme Court who might have been inclined to swing the election to Trump if it had been closer did not lay the groundwork for such a move. A couple of pre-election rulings certainly sparked concern from many legal observers: Shortly before the election, several justices endorsed a theory that could have forced a handful of key states to toss out certain late-arriving ballots — even though those ballots were lawfully cast under existing election rules. But in the states that decided the election, Biden won by comfortable enough margins that his victory was assured even without these late-arriving ballots.
Trump reshaped the Supreme Court in his four years, but the kind of radical break from existing election law that could have overturned the results takes years of judicial labor, and it takes a majority determined to transform the law. Though Chief Justice John Roberts has authored several important decisions diminishing voting rights, and he’s joined several others, he has recently signaled that he thinks his more conservative colleagues are going too far. Meanwhile, conservative Justice Amy Coney Barrett joined the Court just a week before the election.
Roberts’s cold feet and Barrett’s late arrival matter because the law is an iterative process. A conservative majority typically moves the law to the right in incremental steps — handing down one decision that may limit voting rights around the margins, and then citing that decision in a future case to limit voting rights even more. Over time, a determined majority can bring about revolutionary change, but that process typically takes years. The Court’s current majority simply hasn’t had enough time to lay the groundwork (if it were so inclined) for the kind of radical decisions that could have handed Trump a second term.
Let’s examine each of these factors in turn.
Trump’s legal arguments are abysmally weak
In From Jim Crow to Civil Rights, Harvard Law professor Michael Klarman lays out a useful framework for understanding how politics shapes judicial decision-making. Such decision-making, he writes, “involves a combination of legal and political factors,” and “when the law is clear, judges will generally follow it, unless they have very strong preferences to the contrary.” In cases where the law is “indeterminate,” by contrast, judges will generally make political choices because they have nothing else to go on. But if existing law requires a particular outcome, only the most political judges are likely to disregard it.
One sign that the law was not on Trump’s side is that the sort of high-powered Republican lawyers who would ordinarily represent a GOP president in a case of national importance largely sat out the post-election litigation. Instead, Trump was represented by the sort of lawyers who would hold a press conference in the parking lot of a landscaping company. At one court hearing, Trump attorney Rudy Giuliani admitted that he did not understand the term “strict scrutiny,” a basic legal term that is taught to all lawyers during their first semester of constitutional law. And Giuliani was only in court in the first place after several of the Trump campaign’s lawyers abruptly withdrew from a case.
As it turned out, many of Trump’s lawsuits involved small-potatoes claims that wouldn’t matter very much even if Trump did prevail. Or they involved speculative claims of wrongdoing based on minimum evidence, or some combination of the two.
To give one example, a suit filed by the Trump campaign in Georgia alleged that one of the campaign’s poll watchers observed an election worker place a stack of 53 ballots on a table. The poll watcher then left the room, but when he came back, the stack of ballots was gone. And this was somehow evidence that the state might be improperly counting ballots.
Even setting aside the fact that there are any number of legitimate explanations for why these 53 ballots were moved, Biden won Georgia by nearly 12,000 votes. So this small stack of ballots wouldn’t have changed the result even if they were improperly counted.
In other cases, the Trump campaign alleged minor acts of misconduct by election officials, and then demanded ridiculous remedies for these minor acts (acts, it’s worth noting, that often were not even illegal).
Consider, for example, Donald J. Trump for President v. Boockvar, the case for which Giuliani made his disastrous court appearance. The Trump campaign claimed that some Pennsylvania counties told voters who cast defective ballots how to fix them, while other counties did not. They also accused election officials of not giving the Trump campaign’s poll watchers sufficient access to the ballot-counting process.
For these minor alleged violations, the campaign sought what Judge Stephanos Bibas, a Trump appointee to the United States Court of Appeals for the Third Circuit, described as “breathtaking relief: barring the Commonwealth from certifying its results or else declaring the election results defective and ordering the Pennsylvania General Assembly, not the voters, to choose Pennsylvania’s presidential electors.”
That’s like if your neighbor allows one of her trees to encroach on your property, and so you seek a court order requiring the entire neighborhood to be burned to the ground.
In any event, this combination of weak legal arguments and demands for outlandish relief left even the most partisan Republican judges with very little to work with. A politically motivated judge conceivably could have ruled in Trump’s favor simply as a matter of arbitrary judicial fiat, but it would have been nearly impossible for such a judge to disguise the fact that they were handing down a political decision.
So, while judges are political actors and politics frequently shapes judicial decisions, the law still matters. And even when judges do make political calculations, their political interests do not necessarily align with those of the leader of their political party.
Compared to a sitting president who is literally trying to depose a lawfully elected government, judges look like paragons of the rule of law — even if they are doing nothing more than rejecting frivolous lawsuits. And that perception both enhances the prestige of the judiciary and helps inoculate judges against claims that they are too political.
As Maya Sen, a professor at Harvard’s Kennedy School who studies the judiciary, told me, by rejecting Trump’s lawsuits, “conservative judges are coming out looking like big heroes on this.” They benefit from fawning media coverage that “declares that judicial independence [is] back and the courts are the institutional bulwark that is saving democracy.”
Biden’s victory is too big to be overturned
A big reason many Democrats feared that Republicans on the Supreme Court might interfere with an election and award the presidency to the GOP is because, in 2000, Republicans on the Supreme Court interfered with an election and awarded the presidency to the GOP.
But the facts underlying Bush v. Gore (2000), the case that installed George W. Bush as president, are also very different than Biden’s win over Trump. In 2000, the winner of the election hinged on which candidate won a single state: Florida. Initial tallies, moreover, showed Bush leading Democrat Al Gore in that state by just 1,784 votes — though that lead had shrunk to 537 votes when the Bush decision effectively ended a recount of Florida’s votes.
In 2020, by contrast, Biden won enough states that Trump would have had to flip at least three of them to win. And none of those states were anywhere near as close as Florida was in 2000. The closest state that Biden won in 2020, at least in terms of the number of votes separating him and Trump, appears to be Arizona. But Biden still beat Trump by over 10,000 votes in Arizona.
The fact that Biden leads in so many states creates a kind of prisoner’s dilemma for judges who may want to throw the election to Trump. Suppose, for example, that judges in Pennsylvania, Georgia, and Arizona all wanted to overturn the election results in those states. If they all acted in concert, then Trump would have 279 electoral votes and would win the presidency, but if only one or two states flipped, then the judges who flipped those states would have gone out on a tremendously partisan limb for nothing.
According to Sen, research shows that judges typically care a great deal about their reputation within the legal profession. A judge who overturned an election would risk burning that reputation to the ground. Perhaps a sufficiently partisan judge would be willing to take this reputational hit if they knew it would lead to an outcome they prefer, but why light your good name on fire so that Joe Biden can win the Electoral College by a slightly smaller margin?
The Supreme Court hasn’t laid the groundwork for a decision overturning Biden’s victory
The Supreme Court’s conservative majority was fairly hostile to voting rights even before Justice Ginsburg’s death. And it’s likely grown only more hostile now that the liberal Ginsburg has been replaced by the conservative Barrett. Yet while the Roberts Court has handed down an array of decisions diminishing voting rights, none of these decisions opened the door to the kind of sweeping, post-election attack Trump has engaged in.
Many of the Roberts Court’s voting rights decisions have allowed states to erect obstacles between voters and the franchise. The Court’s decisions in Shelby County v. Holder (2013) and Abbott v. Perez (2018), for example, dismantled much of the Voting Rights Act, which prevents states from enacting election laws that discriminate on the basis of race.
Many red states have responded to such decisions by enacting laws that make it harder for voters to cast a ballot. As former Georgia gubernatorial candidate Stacey Abrams explains, these laws are often designed to make voter suppression look like “administrative errors” or “user error.”
Think of voter ID laws, which disenfranchise voters who lack a photo ID, or state election procedures that allocate more voting machines to white neighborhoods than to Black neighborhoods. These sorts of policies do not strip away the right to vote entirely — a person impacted by such a policy can still obtain an ID or wait in an hours-long line if they are determined to vote — but they do deter voters who may lack the means or the patience to do so.
In 2020, however, voters were unusually motivated to turn out. Biden won over 81 million votes, more than any candidate in American history. Many states also saw enormous spikes in absentee voting due to fears that voters could become infected with Covid-19 while waiting in line on Election Day.
Decisions like Shelby County and Perez, in other words, make it easier for states to place hurdles between voters and the polls. Once voters clear those hurdles and cast their ballot, however, the Roberts Court’s previous decisions haven’t laid the groundwork for lower courts to toss out tens of thousands of ballots and award the election to the losing candidate.
Similarly, in the lead-up to the 2020 election, at least four members of the Court embraced a theory known as the “independent state legislature doctrine.” Briefly, this doctrine declares that the state legislature — and, potentially, only the state legislature — is allowed to decide how states conduct federal elections. As Justice Neil Gorsuch put it in a recent opinion, “the Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.”
Before the 2020 election, the Pennsylvania Supreme Court held that certain absentee ballots that arrive after Election Day may be counted. Under the independent state legislature doctrine, however, this state supreme court decision may be invalid, because the state supreme court isn’t the state legislature and therefore isn’t allowed to decide how Pennsylvania conducts its election. Several members of the US Supreme Court warned before the election that they might order these late-arriving ballots tossed out after the election is over.
In the end, however, none of this mattered — at least to the outcome of the 2020 election — because Biden won Pennsylvania by a large enough margin that these late-arriving ballots didn’t matter.
American democracy is still in peril
The fact that Biden will be taking up residence at the White House next month is not a reason to heave a sigh of relief and assume that American democracy is safe. A total of 126 Republican members of Congress — a majority of the House GOP caucus — backed a frivolous lawsuit seeking to overturn Biden’s victory and hand the election to Trump. The idea that presidential elections only count if a Republican wins is now shockingly normalized within the GOP.
Many Republicans who share this disdain for democracy, moreover, are state lawmakers. Some of them are likely to push legislation that will make it harder to vote in their states — some Georgia Republicans are already calling for legislation banning ballot drop boxes and limiting who is allowed to vote by mail — and to enact rigid gerrymanders seeking to lock the GOP into power. And the courts are likely to bless such efforts.
The embrace of the independent state legislature doctrine by four members of the Court may have profound implications for future elections if Barrett provides the fifth vote to enshrine this doctrine in law. Could the Court’s conservative majority use the doctrine to eliminate state governors’ power to veto election laws? Or eliminate state courts’ ability to enforce their state constitution’s voting rights protections? If that happens, that means that in states like Pennsylvania, Michigan, and Wisconsin, which have Republican legislatures and Democratic governors, the governor could lose their power to veto voter suppression laws or gerrymandered congressional maps.
Worse, the Constitution permits state legislatures to decide how members of the Electoral College are chosen in that state. Currently, every state uses a popular election to choose electors. But state legislatures could conceivably vote to simply gift their electors to the Republican candidate — and if the independent state legislature doctrine becomes the law of the land, neither Democratic governors nor state courts may be able to stop such a proposal from becoming law.
As of now, it’s unclear whether the Court will take the independent state legislature doctrine to such a radical extreme. Gorsuch, after all, wrote that state legislatures “bear primary responsibility for setting election rules.” His use of the word “primary” suggests that he may still allow state governors or state courts to play some limited role in shaping state election rules. At the very least, however, Democratic governors in several key states are likely to have a much weaker hand to play against Republican legislatures.
Meanwhile, a case pending before the Supreme Court could potentially dismantle what remains of the Voting Rights Act, ending robust safeguards against racist voting laws and allowing states to target Black and brown communities that overwhelmingly vote for Democrats.
And, as mentioned above, the law is an iterative process. Each Supreme Court decision limiting voting rights becomes a precedent that can be cited to justify additional limits. We honestly cannot know what sort of attacks on voting rights will come before the Court in a few years, after the Court’s new majority has handed down its first round of voting rights decisions. But there is reason to worry given the conservative majority’s record on the issue.
In a high-turnout election, Republican voter suppression tactics — whether it’s closing down polling places in Black neighborhoods or restricting who is allowed to vote by mail — matter less than they do in an ordinary election. But Democrats won’t always get to run against a galvanizing figure such as Donald Trump.
By not overturning an election that Biden won by more than 7 million votes, the courts did the least they could possibly do to respect democracy. The fact is that Trump asked the courts to do too much, too fast, in an election that he lost by too many votes. The courts held steady, but the fact that the judiciary decided not to join a lawless attack on the 2020 election is no reason for celebration. Biden may have won the presidency, but the future of democracy in the United States still looks grim.
Author: Ian Millhiser
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