The Courts Are About to Be Challenged as Never Before
Remember 2000? That One Was Childs Play
The last time our courts were challenged by a national election was the 2000 Bush-Gore election. Hard to believe that was 20 years ago. It was, in so many ways, a mess. One would have thought we had learned a lot from that thing. Not so much.
The courts were wresting with this one, but all in all, not doing too terribly. Then the Supreme Court entered the fray. Badly, in two ways. One, they chose to intervene one step too soon. The Florida Supreme Court was short circuited, for no good reason, in my view. True, one does not want such a thing as a national election to drag on. But this one was short circuited in a manner that did not make good sense.
But worse yet was the decision by the Supremes. I will not kid anyone – I thought they called it wrong. But at the time, as much as I wanted the opposite decision, even more I wanted a clean decision.
I called out loud to the heavens, “Whatever they decide, let it NOT be a 5-4 decision.” Such a result would leave the nation divided and the Court left viewed by millions as a political tool. So it was. It sealed that view when after that decision, Justice Scalia said “You people lost. Get over it.”
The election of 2000 hurt the country in many ways. But it was nothing compared to what is coming.
The Challenge to the Courts in 2020
The Republicans, bless them, have not been shy in making it known how they will (and already are) use the courts. They will use them to delay, cast doubt, and obstruct the popular election. They are launching challenges in as many state and federal courts as they can. Fortunately, most of their arguments so far are built on sand. OK, on fiction, actually. Accordingly, they have lost most of the early cases, and are likely to lose more as we go. That, however, is not the point.
The goal is three-fold. One, cast doubt about the validity of the election among the general population and spread frustration. Two, delay the count as long as possible. Three, run the election to the Supreme Court for an end-run resolution in favor of Trump. I frankly don’t know what that last part looks like. We have no experience with a false election under an authoritarian who makes a sham of the election. But we are about to see it tried.
What We Need from the Courts
If American democracy is to survive reasonably intact, the courts at all levels will have to rise to the occasion. They will have to do what they do best and at the same time do something very alien to them.
The first requirement is to honor the law and apply it. It does not matter what party a judge may be grounded in. This is defense of the constitution at core level. We need judges to do the right things, understanding how fundamental a struggle this is.
The second part is harder. We need judges to move swiftly and with impressive clarity. We do not have weeks to dangle the outcome of this election. Judges must understand the intent is to obscure and delay. They need to call that out with absolute clarity and force, and to rule accordingly. Anything less puts it all at risk. Such delays fairly beg for Supreme Court intervention on the wrong grounds and at the wrong time.
Should this go to the Supreme Court, hope that Roberts cares enough about this court’s place in history to help do the right thing. He has shown that is important to him. Still, I would not count on it, and even if he did, it might not be enough. At least one other conservative justice would need to stand up. That seems most unlikely.
Who Will Be Right?
Trump is betting that a lot of judges he appointed, and some others, will support him. They also hope that other judges will not get how they are being played, and thus will add to the delays.
The rest of us are betting that enough judges will be loyal to the law, the constitution, and the country.
Sure will be interesting to see who called it correctly.
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