Mr. Trump may well make good on his threat to raise millions more from donors and litigate the fake election results up to the Supreme Court. In his life, in every challenge he’s ever faced, he’s taken people to court, harassing enemies, making headlines, defrauding many of money he owed them over the course of his high stakes gambling life.
He has engaged in so many lawsuits, and complained so often of persecution, as he sues people, that there is a current biography of him called Plaintiff-in-Chief: A Portrait of Donald Trump in 3,500 lawsuits (he started or caused a staggering 300 lawsuits, in 44 states, prior to this rigged election). He’s now still hoping Amy, Neil and Brett, (particularly Amy), hold up their end of the quid pro quo (get over it!) and find a way to keep him in power, legally.
He’s got a steep uphill road to his friends on the nation’s highest court. A popular vote loss and a multi-state Electoral College loss are not easy for even the most fervent and loyal lifetime appointed partisans to fix. Particularly in the absence of any proof of voter fraud or electoral mischief that could have changed the outcome of the rigged election.
This situation Trump finds himself in, losing, both the “popular vote” and the Electoral College, cannot be fixed by the Supreme Court, even if Mr. Trump had anything resembling that team of very sophisticated white shoed Republican ideological lawyers who narrowly tailored their arguments to the specific facts of the extremely rare electoral stand-off that led to the one-off decision in Bush v. Gore.
In Bush v Gore the stars aligned perfectly for Bush and friends: virtual tie in the single state that would decide the outcome, top notch lawyering, assisted by an energetic team of bright young legal zealots, including future Supreme Court justices John Roberts, Brett (“Boof”) Kavanaugh and Amy Coney Barrett, and a determined right-leaning 5-4 majority on the Supreme Court waiting to take the emergency application and willing to rule on it. The legal all-stars that brought Bush v. Gore provided a variety of legal theories and arguments in support of their emergency petition to stop the voting before irreparable harm to Bush’s chances at the presidency happened.
Antonin Scalia, as brilliant a legal mind as ever sat on that court, pulled one argument out of the bundle and the 5-4 majority ran with that Hail Mary argument by Bush’s top-shelf legal team . Justice Kennedy is reputed to have been the author of the infamous decision. It found there was some kind of clear violation of the Equal Protection clause of the 14th Amendment which states that citizens have the right to equal protection of the law.
The 5-4 majority said, and don’t quote us on this, ever, this decision is not to be used as a precedent (unprecedented) but a selective recount in contested counties was a violation of equal protection, in this instance, because, in Florida, counties had different systems of voting, some with touch screens, others with paper ballots, so it would be unconstitutional to, oh, you know what we’re saying! (Where I voted in NYC they had paper ballots and scanners so the ballots — scanned and paper record– could be correlated and reconciled in the event of a controversy).
Five unappealable conservative jurists put aside their partisan beliefs to make a bold and unprecedented decision that decided the 2000 presidential election. The Court crafted a one-off, disposable ruling, in favor of Bush. Case closed. Get over it. Mr. Trump was really counting on his fresh 6-3 majority to do him a similar favor.
The Scalia Court (it was actually the Rehnquist Court) reasoned that, eh, since Bush would be irreparably harmed (by not becoming president) by the recounting of votes in some counties while not others, and the People of Florida had a right to be equally protected under the law as far as their representation in a recount, well, you see, it’s clear that under the 14th Amendment the counting of ballots has to stop, it’s a clear violation of that constitutional clause we cited. Bush would otherwise be irreparably harmed, as plaintiffs’ crack legal team has persuasively claimed. By the way, never cite this case, it will not be precedent for any other case in the future. Only time I’ve ever heard of that on a Supreme Court decision.
To win this kind of legal challenge you need a concrete legal injury (besides “unfair that I lost!”) a coherent legal theory of some kind leading to a legal remedy (the judge can’t work with nothing) and some evidence to support the claims you’re making. The Trump/RNC lawsuits that are constantly being dismissed do none of these things.
Young Donald learned, at the tit of eventually disgraced, several times indicted, belatedly disbarred mafia lawyer Roy Cohn, that given enough aggression and manipulation, and controlling the messaging in the court of public opinion via the press, any court case can be won, settled favorably — or at least drawn out long enough to prevent the worst. This is mostly still true today, providing you have unlimited money and the smartest, most unethical lawyers in America on your payroll. But, it’s not necessarily so– even if Trump’s lawyers were of the caliber of the white shoed ferrets who prevailed in the one-off Bush v. Gore. The circumstances also matter in court cases where they are called “the facts”. Sorry about that, Don.
A couple of words about the Republican claim, while they were forcing another lifetime justice on to the Supreme Court in the weeks before the election (while leaving millions of poor Americans to their misery by refusing to vote on the House bill to extend government help to millions of our hungry, unemployed, increasingly desperate fellow citizens), that Democrats, if they had the power, would do the exact same thing — take advantage of a narrow majority in the same abusive way Republicans did in cramming through the confirmation of a highly partisan Supreme Court justice to cement an irrefutable majority days before a presidential election, with voting well under way.
In a strong field of contenders, this claim is possibly the most despicable recent Republican claim. It boils down to a circular bit of illogic: I can prove (at least to stupid people who hate you) that you would cheat if you were in my situation, because I am cheating, which proves that if you were in my position you would do THE EXACT SAME THING. McConnell and Graham both made this point repeatedly during the confirmation of religious extremist Amy Coney Barrett. Both of these atrocities have been easily reelected for six more years. Live with it, losers. The widely disliked senator from Texas whose father killed JFK (according to Trump) said the same thing.
Heh, what are ya gonna do?
Justice Antonin Scalia, convinced that all the manual recounts being performed in Florida’s counties were illegitimate, urged his colleagues to grant the stay immediately. On December 9, the five conservative justices on the Court granted the stay for Bush, with Scalia citing “irreparable harm” that could befall Bush, as the recounts would cast “a needless and unjustified cloud” over Bush’s legitimacy. In dissent, Justice John Paul Stevens wrote that “counting every legally cast vote cannot constitute irreparable harm.” Oral arguments were scheduled for December 11.
In a per curiam decision, the Court first ruled 7–2 (Justices Stevens and Ginsburg dissenting), strictly on equal protection grounds, that the recount be stopped. Specifically, the use of different standards of counting in different counties violated the Equal Protection Clause of the U.S. Constitution. (The case had also been argued on the basis of Article II jurisdictional grounds, which found favor with only Justices Scalia, Clarence Thomas, and William Rehnquist.) Second, the Court ruled 5–4 against the remedy, proposed by Justices Stephen Breyer and David Souter, of sending the case back to Florida to complete the recount using a uniform statewide standard before the scheduled December 18 meeting of Florida’s electors in Tallahassee. The majority held that no alternative method could be established within the discretionary December 12 “safe harbor” deadline set by Title 3 of the United States Code (3 U.S.C.), § 5, which the Florida Supreme Court had stated that the Florida Legislature intended to meet. That deadline arrived two hours after the release of the Court’s decision. The Court, stating that not meeting the “safe harbor” deadline would therefore violate the Florida Election Code, rejected an extension of the deadline.