Breaking: Supreme Court, Sort of Unanimously, Rejects Texas’s Case, Ending Ridiculous, But Also Dangerous, Litigation. What’s Next?

The Supreme Court dismissed Texas’s bill of complaint in the latest high-profile case pushed by Trump allies in an attempt to overturn the results of the election. The Court did not issue an accompanying opinion.

[Addendum: The court did say that Texas lacked standing because a state has no “judicially cognizable interest in the manner in which another State
conducts its elections.” This may turn out to be important in shutting down other attempts like this for one state to sue another.]

As expected, Justices Alito and Thomas, who had previously stated that the Court does not have discretion to turn down the cases, would have granted the motion to file the complaint but not granted other relief and expressing no view on the merits of the case.

Whether we count this as 7-0-2 or otherwise I’m not sure. Justice Barrett did not indicate that she recused (as I thought she should have in any election cases in which Trump was a party).

The outcome was never in serious doubt given how weak the claims were both legally and factually. A Supreme Court decision to hand the election to Trump on the flimsiest of legal and factual foundations would have been the end of modern American democracy and sparked widespread unrest.

I find much solace in the fact that not just the Supreme Court, but courts across the nation, with both Democratic and Republican judges, held the line for the rule of law. This is something really to celebrate as I’ve said.

But the fact that 18 attorneys general and 126 members of Congress, all Republicans, could line up behind this outrageous Texas case is horrible and bodes ill for the country for years to come.

Modern American history has not had a President falsely, repeatedly, and relentlessly claimed voter fraud and election irregularities like Trump has. As I wrote in the NY Times recently,:

By the time President-elect Biden takes the oath of office, millions of people will wrongly believe he stole the election. At least 300 times since Election Day, Mr. Trump has gone straight to his followers on social media to declare the election rigged or stolen and to claim, despite all evidence to the contrary, himself as the real victor. Mr. Trump’s false claims will delegitimize a Biden presidency among his supporters. It should go without saying that a democracy requires the losers of an election to accept the results as legitimate and agree to fight another day; Republican leaders echoing Mr. Trump’s failure to support a peaceful transition of power undermine the foundation of our democracy. It’s not only the fact that we have had to say this, but that we keep having to repeat it, that shows the depths that we have reached.

The Republicans who lined up with Trump in the Texas case are either cowards or worse: those who reject the foundation of a democracy that losers concede after a fair election. We had a fair election, despite what Trump and his supporters say. This will have bad consequences for democratic stability going forward.

And now what’s of the other lawsuits? Trump is appealing to the Wisconsin Supreme Court one of his latest losses, and there are a few more cases out there. None of these cases will amount to anything. This has been clear for a month despite the president’s protestations.

The electors will meet on Monday, and then Congress will count the votes on January 6. Biden will prevail, though I fully expect drama that day as objections are made. Unless both houses of Congress sustain an objection, the objection fails. The Democratic House is not going to sustain an objection to the Biden electors.

So some litigation may continue, but it will not change election results. The delegitimization of the Biden presidency by Trump, and of elections generally, will reverberate for years to come. And that’s a real tragedy.

[This post has been updated.]

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