Alito: we must undermine democracy now in order to destroy it later

I obviously don’t share the author’s disillusionment with conservative legal theory — and as is often the case with actual anti-Trump former conservatives, it’s not clear how much Last ever really believed it either — but boil that off and this might be the best summary of the position Alito advanced at oral argument in the Trump I-can-shoot-people-on-5th-avenue case:

I want to be very clear about what Justice Alito is saying here:

• Donald Trump attempted a coup, and failed.
• The criminal justice system is attempting to hold him accountable for this clear violation of the law.
• But doing so might lead to some other president to attempt a coup.
• So if someone attempts a coup they must not be prosecuted.
• Because if you prosecute them, they might attempt another coup.

The Alito Theory sees a coup as merely an alternate path to power, no more or less valid than an election. If a coup is attempted and succeeds, the couper becomes president and faces no consequences. If a coup is attempted and fails, the couper is immune to prosecution and free to attempt another coup in the next election. And perhaps even in the election after that.

From Alito’s perspective, a coup is no different from a recount or a lawsuit attempting to disqualify ballots. It’s just another electoral Hail Mary pass.

Though, of course, sometimes those passes are caught.

Alito’s slippery slope hypothetical is literally that if the law can hold someone accountable for trying to steal an election someone might try to steal an election. It’s laughably illogical, only it makes a perverse kind of sense…if you think Trump’s argument that the election was stolen was legitimate, because what’s left of your brain has been pickled in a jalapeno-laced fascist brine by NewsMax and luxury fishing trips with Harlan Crow. So you’d better believe that if the 2024 election comes down to one state, we’re getting Bush v. Gore II: Many More Complexities.