November 27, 2020

Supreme Court’s Godfather

IMMEDIATE RELEASE 28 October 2020WASHINGTON MERRY-GO-ROUNDToday’s Events in Historical PerspectiveAmerica’s Longest-Running Column Founded 1932The Supreme Court’s GodfatherBy Douglas Cohn and Eleanor Clift          WASHINGTON – The real story isn’t President Trump’s outlandish efforts to recreate 2016 with rallies that will win him the White House. It’s the Supreme Court, and what a new conservative majority will do when he comes knocking at their door to deliver him the victory he could not achieve at the ballot box.          The 2020 election is not likely to be close. It could be a landslide for Joe Biden, but Trump has never conceded anything in his life, so what will he do?          He will appeal to the Supreme Court, believing it is his last chance to save his presidency and to save face. After months of seeding the ground with doubts about mail-in balloting, his army of lawyers will find a path to the Court.          The addition of Associate Justice Amy Comey Barrett to the Court makes it the most conservative court since the 1930s. Chief Justice John Roberts is now the only moderate – shall we say semi-moderate – among the six Republican-appointed justices because he has on a few occasions sided with the Court’s liberals to retain the Court’s legitimacy and save it from being fully out of touch with the needs of the country.          To call the three newest justices on the Court conservatives is a misnomer because the word implies legal conservatism. In fact, Justices Neil Gorsuch, Brett Kavanaugh, and now Barrett are conservative Republicans.  Their views on issues such as gender rights, voting rights, health care, etc. are grounded in political rather than legal ideology.          And that ideology will be on trial when and if they are called to rule on alleged voting improprieties. Justice Kavanaugh tipped his hand in a recent concurrent opinion in the Wisconsin voting case that ruled ballots received after Election Day would not be counted. He wrote states with this rule “want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election."          Kavanaugh also parroted Trump’s argument that winners should be known and announced on election night. Liberal Justice Elena Kagan tartly noted in her dissent that “there are no results to ‘flip’ until all valid votes are counted.”          The politics could not be more blatant. In Pennsylvania, Republicans are returning to the Supreme Court now that Barrett is seated to try and undo a ruling last week that upheld a three-day grace period in Pennsylvania to count mail-in votes after Election Day.          That ruling was 4-4 with Roberts joining the three liberals on the Court, thereby validating the lower court’s decision. Republicans wasted no time once Barrett took a ceremonial oath of office from Justice Clarence Thomas.          In the Court whose legacy bears his name, Roberts is not going to want very many 5-4 decisions with him on the losing side with three liberals. The more likely outcomes with Barrett on the Court are 6 to 3 solid conservative wins.          The theoretical will soon become reality as Trump looks to the Supreme Court to salvage his presidency with fraudulent claims about the illegality of an election held during a pandemic that relies so heavily on mail-in votes. Recalling the scenes in Florida after the 2000 election and election workers trying to decipher which ballots could be counted, and which should be discarded, the potential for mischief is boundless if Trump is determined to discredit the results.          Democrats repeatedly asked Barrett during her Senate hearing if she would recuse herself from ruling on voting cases brought on behalf of the man who just so speedily put her on the Court just days before an election that he might contest. Recusal is up to the individual justice. What Barrett decides will be a test of her character, and the character of the Court for decades to come.          So, here we go again – or not. Will our politically appointed justices follow the law or follow their party or worse, their presidential godfather?          Douglas Cohn’s latest books are World War 4: Nine Scenarios (endorsed by seven flag officers) and The President’s First Year: The Only School for Presidents Is the Presidency.          Twitter:  @douglas_cohn          © 2020 U.S. News Syndicate, Inc.          Distributed by U.S. News Syndicate, Inc.          END WASHINGTON MERRY-GO-ROUND

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