As a particularly monumental Election Day approaches, the president, confident of victory (in the court of Federalist Society-vetted federal appeals court and Supreme Court judges he’s appointed for life, anyway) has already announced that he will file a lawsuit against any electoral decision in Pennsylvania that is not in his favor. Article II, you understand, it let’s him do it, because he’s a big star, and supremely powerful and confident and, when you’re that big, they let you do whatever you want. You can grab ’em by the federal court, and they let you do it.
I’m hoping this historic early voting, and a turn-out on pace to break all records for voting in a presidential election, are strong signs that the nation has had enough of being constantly, roughly grabbed by the pussy. Women — and the majority of white ones unaccountably voted for Trump last time — seem to have woken up. Polls show Biden up 20 points among women this time, a popularity among the majority gender that Hillary Clinton never approached. Polls have been wrong, of course. For one thing, millions won’t admit to pollsters that they plan to vote Klan once inside the booth. Yadda yadda.
It’s possible the courts will decide this election, by disallowing the counting of thousands, even millions, of non-Trump ballots in various states, by pulling an esoteric ruling out of its collective, partisan ass, as the 5-4 Republican majority did in 2000. Bush v. Gore was decided based on an impressively feeble Hail Mary Equal Protection theory that the opinion stated, as applied, was to have no value as a precedent. A partisan majority, history shows us, doesn’t shrink from pulling out a unique, madcap one-off decision, if the historical necessity arises. Here’s a decent discussion of the possibility of another Bush v. Gore in 2020.
It’s tempting to call a determination to have a straight party-line Supreme Court vote on, say, a brand new Executive-created doctrine called “counting only votes cast and counted by close of business November 3, unless those votes are against me, in which case they’re fraud” unprincipled. Samuel Alito and Boof Kavanaugh have already signed on to this idea, as has Clarence Thomas — all are open to post-election review of non-Trump votes anywhere and everywhere — to prevent, in Boof’s unmistakable prose:
“the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of the election.“
Gorsuch hasn’t said where he stands, but he doesn’t really need to. Amy Coney Barrett? Anybody’s guess. Chief Justice and one-time “swing vote” John Roberts? It doesn’t matter anymore, with Amy there.
Tempting to call this hyper-partisanship unprincipled, but there is a powerful principle at work here. Power. Politics is seen by partisan groups like the Federalist Society as a blood sport, you prevail by killing your evil enemies and the ends justify the means. If you join the Federalist Society you commit to defending certain political, ideological positions, they become dogma. Anyone who deviates from dogma is a heretic. Everyone knows that heretics must be excommunicated and burnt at the stake.
With that, here’s a recent photo of a fervent true believer passionately preaching to an adoring crowd at the Federalist Society gala.
You can get a pretty good sense of the high principles that animate an uncompromising, ideologically pure legal mind like Bagpiper Bill Barr’s, and his ilk, from this presentation by John Oliver.
Good luck to us all tomorrow and in the high stakes days that will surely follow.