LIBERTY WITHOUT REFUGE: A WARNING

LegalDispatch 113

“Liberty finds no refuge in a jurisprudence of doubt.”

That’s one of my most favorite judicial passages, so beautiful and poetic that I committed it to memory back in law school. It’s the opening line of the Supreme Court’s opinion -- written by Justice Sandra Day O’Connor -- in Planned Parenthood v. Casey, 505 U.S. 833 (1992), a seminal case which honored established precedent to uphold the abortion rights of Roe v. Wade, 410 U.S. 113 (1973).

Eight years later, Justice O’Connor would cast the deciding vote in Bush v. Gore, 531 U.S. 98 (2000), the Supreme Court decision which delivered the state of Florida and, thus, the presidency to George W. Bush. It was rumored Justice O’Connor wanted to retire and her position as the swing vote of the Bush case afforded her the opportunity to do so under a Republican administration.

Viewed from the vantage of the polarized time we’re currently living in, you might be surprised to learn there were no riots or violence in the wake of the Court’s decision. Democratic leaders in Congress did nothing in protest, mitigation, or revenge. The country moved on, quietly.

Sixteen years later, with the untimely death of Justice Antonin Scalia, Senate Majority Leader Mitch McConnell prevented a Democratic president from filling the vacancy left by Scalia’s passing. McConnell’s argument was that the 2016 presidential election was a “mere” 237 days off and that it would be improper to seat a Supreme Court justice in an election year.

McConnell, of course, had no legislative or legal basis for his argument, but he did have power and, thus, prevented President Obama from filling Scalia’s seat. However, there were no riots or violence. Democratic leaders in Congress did nothing in protest, mitigation, or revenge. The country moved on, quietly.

Four years later, another vacancy opened with the death of Justice Ruth Bader Ginsburg. Once again, it was an election year. This time, however, there were only 42 days to go before the next president would be elected. Nevertheless, McConnell, still in charge of the Senate and wielding a cynical “heads I win, tails you lose” legislative rationale, rushed through the appointment of Judge Amy Coney Barrett. Coney Barrett joined the other two conservative justices appointed by President Trump, Neil Gorsuch and Brett Kavanaugh, to help form a “super-majority” of conservatives on the Court. However, there were no riots or violence. Democratic leaders in Congress did nothing in protest, mitigation, or revenge. The country moved on, quietly.

Last July, this same Court handed down its ruling in Trump v. United States, 603 U.S. ___ (2024), a ruling which gave President Trump broad and unprecedented immunity powers considered to be so dangerous that Justice Sandra Sotomayor was compelled to write in her dissenting opinion that she was writing with “fear for our democracy.” Nevertheless, there were no riots or violence. Democratic leaders in Congress did nothing in protest, mitigation, or revenge. The country moved on, quietly.

And so we come to the presidential election of 2024, a period which sees our nation so divided that the only thing sitting President Joe Biden and multi-billionaire Elon Musk can agree on is that democracy itself is at stake. But for all the handwringing and stressing and day drinking on both sides, there is an outcome to be feared greater than Kamala Harris or Donald Trump winning the 270 electoral votes necessary to become the 47th President of the United States.

No, I’m not talking about an electoral college tie of 269 votes each. In such an event, the matter would be determined by the House of Representatives and although that outcome is almost certain to be in the Republicans’ favor, there would be no outrage or calumny, as the House remains an institution that the average American voter at least views as legitimate. And if history is any guide, there will be no riots or violence. Democratic leaders in Congress will do nothing in protest, mitigation, or revenge. The country will move on, quietly.

In hindsight, therefore, we might find ourselves wishing for an electoral college stalemate. Because the alternative is indeed terrifying. Hurricane Helene has already wrought havoc in the swing states of Georgia and North Carolina. Officials in Washington and Oregon are investigating two fires set yesterday that destroyed the hundreds of ballots contained in two ballot drop boxes. While we don’t know the myriad ways the election can be tampered with by circumstance, the unforeseen isn’t our only concern. All the signs of how Donald Trump attempted to overturn the results of the 2020 election are back, in force, four years later. Republicans control the legislatures of Georgia, Wisconsin, North Carolina, and Arizona. According to The New York Times, the GOP has “unleashed a flurry of lawsuits challenging voting rules and practices ahead of the November elections, setting the stage for what could be a far larger and more contentious legal battle over the White House after Election Day.”

Yesterday, Vox reported that “the Republican party [has] asked the US Supreme Court to ... effectively disenfranchise thousands of voters” in the critical swing state of Pennsylvania. The entire Vox piece, titled “A new Supreme Court Case could change the result of the presidential election” is worth reading in its terrifying entirety. And Vox is not alone. Earlier this month, Politico laid out three scenarios under which the Supreme Court could determine the outcome of the election in its piece, “Why the Supreme Court Might Cast the Final Vote for President.”

Bottom line, the idea that one or more battleground state’s votes could be the subject of a case that finds itself before the Supreme Court isn’t hypothetical so much as it is highly likely.

Thus, the stage is set for a redux of the Bush v. Gore decision that swung the 2000 presidential election. However, we’re 24 years and several metric tons of judicial, political, and societal change removed from those halcyon-in-hindsight days. In 2000, the Supreme Court’s approval rating was 62%. Today, it stands at an anemic 43%, virtually a record low. It comes by this diminished reputation honestly. A full one-third of the Court’s nine justices were appointed by the very candidate who could have the presidency rendered unto him by their decision. Matters are not helped by the reminder that two of those three justices were appointed under legislatively questionable (to be kind) circumstances.

So what is to happen if this Court, in its dubious legitimacy, were to hand down a ruling in favor of Donald Trump? Call it the “Trump v. Harris opinion.” History seems to suggest that there would be no riots or violence. Democratic leaders in Congress would do nothing in protest, mitigation, or revenge. The country would move on, quietly.

Doesn’t seem likely, does it?

Sitting President Biden would be under pressure -- akin to the kind that forges coal into diamond -- from his constituents and his party to not let such injustice stand, cloaked in the same executive immunity conveyed upon Trump by the Supreme Court. It’s only by dint of the fact that Joe Biden is a good and decent person that we don’t contemplate the actions he is permitted, under Trump v. United States, to take. It’s impossible to say with the same certainty that Donald Trump, in Biden’s position, would exercise such restraint. To the contrary, as he already proved on January 6, 2020, Trump would plunge the country into civil war if doing so served his ends. (Even if those ends are as banal as avoiding the ego death that comes with losing an election.)

Accordingly, President Biden would limit his options to those afforded him by the bully pulpit. As impotent as those options are, Republicans would nevertheless accuse him of hypocrisy (a vice they indulge in on the regular), of questioning the legitimacy of an election. But Biden wouldn’t be doing that. Rather, he would be correctly criticizing the legitimacy of the Supreme Court’s ruling in Trump v. Harris and, thereby, the legitimacy of the Court itself.

But that alone would spark a constitutional crisis unlike any we’ve seen in America’s 246-year history.

Such an exigency could only be resolved in one of two ways, with the nation barreling towards January 20, 2025 as though it were the edge of a cliff all the while. The first way would necessarily start with the theoretical impeachment of enough justices to reverse the Court’s opinion in Trump v. Harris. Impeachment of Article III jurists, however, requires a vote of impeachment in the House and trial and conviction in the Senate.

The odds of this happening even once, much less in enough numbers to eliminate the Court’s conservative super-majority are infinitesimal. But unprecedented moments often lead to unprecedented outcomes, so let’s dare to posit that the composition of the Court is sufficiently altered as to permit overturning Trump v. Harris. Remember, however, that enough justices to change the verdict would still have to be selected, nominated, and confirmed before this could even happen.

But there’s an even greater condition precedent which would also need to be met: A new case. Just as the Supreme Court couldn’t overturn the precedent of Roe without an underlying matter, the Court would need a similar opportunity to reconsider its opinion in Trump v. Harris. I’m hard pressed to imagine what such a case could be, but let’s assume that it’s another litigation relating to the voting results of a swing state.

Vladimir Lenin famously observed that “there are decades where nothing happens; and there are weeks where decades happen.” But the scenario laid out above would strain Lenin’s axiom to its breaking point. There’s simply no way a minimum of three Supreme Court justices could be impeached, replaced, hear arguments, and deliver a decision on another case in less than three months.

Accordingly, let’s turn to the second potential resolution: Violence in the streets of such unprecedented quality that it requires the involvement of the armed forces of the United States of America. The Posse Comitatus Act of 1878 theoretically prohibits such military involvement on American soil, but if we’ve gotten ourselves to this point, we’re off the map. All bets, as they say, are off.

And while such an outcome is almost too terrible to contemplate, speaking as a writer, it does have a kind of narrative legitimacy, the feeling that this is where our national story has always been headed: The logical culmination of decades of disinformation spread on social media and cable news; of the electoral college and minority rule; of legislative gamesmanship and perjury infecting Supreme Court nomination proceedings; of politicians placing party over country at every opportunity; and, yes, of Democrats meeting a parade of injustices with compliant, polite inaction.

If people take to the streets, if there is violence in our cities and towns, if the American experiment ultimately fails, none of us will be able to say we didn’t see it coming. To the contrary, if such a dark day does arrive, it will carry with it a feeling of inevitability.