The Supreme Court’s looming threat to American democracy
By 
As Matt Ford points out, in some ways the institutional configurations of 2024 will make it harder for Trump to steal the election if he loses — Democrats control the White House, and the battleground states are generally controlled by Democratic governors (or, in the case of Georgia, Republicans with a record of supporting multiparty democracy.) In the wake of Trump v. US, though, the situation with the Supreme Court is much worse:
Roberts’s errors are so fundamental that they force us to reevaluate both him and the court itself. It is worth emphasizing that the conservative justices in the majority abandoned all of their previously stated beliefs to write this decision. Michael Rappoport, a University of San Diego law professor who serves as the director of its Center for the Study of Constitutional Originalism, described the decision as an “originalist disaster.” Other nonliberal legal commentators noted that Sotomayor’s dissent was far more faithful to the original public meaning of the Constitution.
But this is not merely about disagreements in interpretive method or judicial philosophy. Those happen all of the time. This is about basic understandings of the American republic and its civic tradition. Roberts’s ruling comes from a world without John Locke, without Montesquieu, without Thomas Jefferson or James Madison or Alexander Hamilton. He describes a Constitution unmoored from republican virtue and higher principles of self-government. If living constitutionalism is French and originalism is Italian, then Trump v. United States is written in Klingon.
To make matters worse, the outcome appears to have been unavoidable. The New York Times reported in September that Roberts had brushed aside efforts from the start to reach consensus from the liberal justices, instead favoring a divisive, maximalist ruling that gave Trump almost everything he wanted. Sometimes the court’s most flawed rulings are the product of the fragmented consensus that is required to form a five-justice majority. Not so in this case. The blame lies squarely on Roberts—the chief justice, the heresiarch, the balls-and-strikes umpire who happily gave Trump four outs and loaded the bases.
That brings us back to the 2024 election. If Harris wins a majority of electoral votes next month, I have no doubt that Trump and his allies will ask the courts to intervene on his behalf or force others to go to the courts to stop him. He is eagerly laying the groundwork to do it as we speak. Twelve months ago I would have assumed the Supreme Court would resolve those cases with the same equanimity and skepticism that it showed—and that Trumpworld’s efforts deserved—in 2020.
Trump v. Anderson and Trump v. United States make it impossible to maintain that certitude. The court’s conservative majority eagerly abandoned text and precedent to clear Trump’s path to run in this election and to shield him from the consequences of trying to overthrow the last one—and they did so at a time when they were freed from any real pressure, political or otherwise, to show him deference. I am no longer confident that they would brush aside fraudulent slates of electors or compel MAGA-friendly officials to certify legitimate election results. I can no longer assume that even the most ridiculous legal theories will be rejected out of hand. After all, “absolute presidential immunity” used to be one of them.
One reason the 6-3 majority is so dangerous is that the Republican majority knows it’s in very little danger of losing the median vote for the foreseeable future. This year’s relevant rulings make it hard to avoid the conclusion that the Court will be looking for any pretext to hand the election to Trump if he loses and may very well find one. This is doubly true if it comes down to one state — they already have a playbook for that one, after all.
Pema Levy has a really good piece about the groundwork that has already been laid by the Republican extra-legal movement to try to undermine the election that’s also worth your time.