Tipping the Scales: The MAGA Justices Have Already Interfered with the 2024 Elections
They continue to be no less partisan than the House or Senate GOP Caucuses
By shielding Donald Trump from standing trial before a jury in two of his felony cases, Trump’s three appointments to the Supreme Court, along with the even more MAGA Justices Alito and Thomas and Judge Aileen Cannon, have already irreparably interfered in the 2024 election. Most importantly, when we finally do get the immunity ruling in the days or more likely weeks ahead, it will set the stage for a historic crisis.1 We will face an irreconcilable showdown between the normal operation of the criminal justice system (which should find Trump in pretrial and trial proceedings for his January 6th crimes over the next five months) and the normal functioning of presidential elections (which should find him campaigning full-time during those months).
Furthermore, proceeding with Trump’s trial in a timely fashion would supercharge pre- and post-election claims that the election was not free and fair. Yet not holding the trial before the election would surrender the imperative for voters to know the full extent of Trump’s legal accountability for the insurrection. Indeed, if you watch focus groups, or talk to voters who don’t live in our 24-7 political news ecosystem, you will find that (1) they take Trump’s criminal conviction for 2016 election interference extremely seriously; (2) conversely, many have internalized the failure to hold Trump accountable for the insurrection as evidence that his crimes there were not as serious as they appeared, and (3) many believe Democrats bear responsibility for the failure to hold him accountable for the attempted coup.
It didn’t have to be this way: had the Republican majority on the Court not intervened at the last minute, we would already have a verdict in the case. We would also have a verdict if they had not rejected Jack Smith when he asked them to decide the same issues last December.
Post-Hoc Immunity: Another page ripped from the authoritarian playbook. Now, imagine you were told that in another country, a president who had been defeated in a free and fair election attempted a coup, for which he was indicted. However, four years later, the very judges he had appointed have successfully helped protect him from standing trial. That is America in 2024.
And yet somehow, Topic A continues to be whether duly prosecuting Trump will erode confidence in the legal system, despite overwhelming evidence that the DOJ has been scrupulous in affording him every possible deference. Instead, we should be asking whether it erodes confidence in the legal system when the judges Trump appointed intervene to shield him from accountability.
Whether it’s in Orban’s Hungary, Erdogan’s Turkey, Putin’s Russia, or now the United States, authoritarian movements consistently attempt to amass and consolidate power by hijacking courts to provide them with post-hoc impunity. In the US’s case, the hijacking we now confront by the MAGA judges is the result of decades of hollowing out judicial independence by the Federalist Society and its revanchist backers. Their goal is to accomplish by fiat that which could not be done through anything resembling a democratic process – from stripping freedoms we’ve taken for granted to removing essential restraints on corporate power.
Repealing and Replacing the 20th Century. In this post, I want to make clear that this kind of interference is neither isolated nor recent. Since its brazen outcome-determinative election interference in Bush v. Gore, the GOP-appointed justices have consistently acted to benefit Republicans electorally. They do that both by systematically overhauling the federal election system to Republicans’ benefit, and by making pro-GOP decisions in nearly every election-specific decision. In almost every instance, these decisions have been made on a party-line basis, often with obvious disregard for facts and logic.
All of the current MAGA majority justices and Judge Aileen Cannon have current or former associations with the Federalist Society, and the group has been a de facto gatekeeper of GOP Supreme Court and important lower court nominations for decades.2 That power peaked in the Trump administration. As I showed in “Breaking the Law: Trump Is the Means, Not the End,” Federalist Society majorities have acted with ever-increasing impunity to leverage the power granted to them by an ever-diminishing proportion of Americans, as reflected by the presidents who nominate them and senators who confirm them.
The Federalist Society Stakes. The 2024 election could determine whether Federalist Society justices’ life’s project succeeds in the long term. Therefore, these jurists have an obvious lean writ large when it comes to Trump’s cases. Consider that by 2028, Clarence Thomas will be 80 and Samuel Alito 78, and Sonia Sotomayor will be 73 and has a chronic health condition. That means that by 2028, Trump could make nominations that add up to a 7-2 Federalist Society majority, with John Roberts the only one over 65 years old. On the other hand, if he gets to name a replacement for the two older Republicans plus Sotomayor, Biden’s second-term nominees could constitute a 5-4 “Democratic” majority.3 The stakes are similar in terms of the federal appeals and district courts, where a second Trump term would likely provide Federalist Society majorities on even more of the circuits, and many of his second-term appointments would be unqualified ideologues like Matthew Kacsmaryk. A second Biden Administration (with a Senate majority), however, could claw back existing Federalist Society majorities in several circuits.
Tipping the Scales of Justice
It is clear that Bush v. Gore marked a decided turn in which nearly every future major election case would be decided by Republican fiat. In Bush v. Gore, the Supreme Court literally intervened to pick the winner of the 2000 election. But since then, the Federalist Society majority’s interventions have been broader and more insidious – completely remaking our election systems to favor the interests that back the Republican Party.
At no point since World War II has there been a 5-4 partisan ruling to make elections more democratic – not to expand voting rights, limit campaign finance, or constrain gerrymandering. (For most of the span of the Roberts Court, five of the nine justices were appointed by Republican Presidents and four by Democratic Presidents. Thus, in that period, a 5-4 split almost always represented a straight party line split.)
When SCOTUS made elections more democratic it was by large majorities, and almost exclusively by the Warren Court. However, Republican-appointed majorities have made our elections less democratic on a straight partisan basis repeatedly over the last 24 years. Beginning with Bush v. Gore, on at least a dozen occasions, SCOTUS has radically altered election law on a partisan 5-4 or 6-3 basis – often overriding bipartisan legislation enacted by Congress, and often relying on spurious facts or questions not even presented in the cases.
The following is based on the 30 most important election-related cases decided by SCOTUS, beginning with the Warren Court, and relies on the authoritative Supreme Court Database which indicates whether a ruling was “liberal” or “conservative.”4
All six such decisions made by the Warren Court consistently made elections more democratic, establishing principles like “one person, one vote.” All of them were consensus decisions, by which I mean they were made by justices appointed by both parties. That shifted a bit in the Burger court, with about half of the cases deemed conservative and half liberal, but nearly all were consensus decisions.
But then the Rehnquist and Roberts courts, in nearly every instance on a straight party-line vote, completely remade federal elections to advantage Republican interests (detail below). And, remember, all but one of the Roberts Court's 6-3 decisions came after Barrett joined the Court. The only other one was when Justice John Paul Stevens voted with the Republican appointees to sustain a state voter ID law, a decision he subsequently came to regret publicly.5
The following graph shows the number of important election-related rulings each Court made, broken down by ideology. The dark blue represents liberal consensus rulings with 7 or more votes; the dark red represents conservative rulings where the majority consisted only of Republican nominees.
The interaction of that approach and the Senate filibuster is catastrophic. Republican-appointed justices have been legislating from the bench, protected from congressional reversal by a filibuster that requires the support of GOP senators who represent only 21 percent of the US population.
Similarly, at the state level, nearly every significant restriction on voting rights over the last decade was passed by Republican trifectas on straight party-line votes. On the other hand, many of the expansions of voting rights on the state level were passed on a bipartisan basis. And there are no examples of Democratic trifectas making it more difficult for Republican constituencies to register or cast their ballots.
For more on the divergence between Blue and Red state legislating, see The Two Nations of America.
Tipping the Scales of Justice #1 - Shielding Trump from accountability for January 6th and the criminal conspiracy to overturn the results of the 2020 election.
The DC trial was set for and should have begun on March 4th, over three months ago.6 Three months before that, Jack Smith asked SCOTUS to rule on an expedited basis on the question of presidential immunity, which they declined to do. Compare this to the swiftness of other important decisions. For example, Pentagon Papers and Bush v. Gore appeals were both resolved with the urgency they required—6 days and 4 days from cert petition to decide, respectively, not the more than six months we have here.
Even if we look at longer timetables for other urgent cases, the court has still blown past them. For example, in the 14th Amendment disqualification case, the question of Trump’s candidacy on Colorado’s ballot took just 25 days from argument to decision – a timetable that would’ve meant an opinion by May 20 in the immunity case. If the Supreme Court showed as much concern for protecting the Constitution and the American people from a former president who incited a failed insurrection as they have for shielding Trump from accountability, we would have had that decision by May 20. We are now almost a month past that marker.
One more point about the immunity timeline: Presuming that Kagan, Jackson and Sotomayor would have heard the case in December, we can assume that none of the MAGA justices went along with granting cert. (Smith needed 4 votes, which he obviously did not get). After the D.C. Circuit’s unanimous rejection of Trump’s immunity claims, at least four SCOTUS justices reversed their December position and agreed to hear the immunity question.
Tipping the Scales #2 - Shielding Trump from accountability in the documents case
Another United States v. Trump case that should have already gone to trial concerns the 40 felony charges Trump faces for his handling of presidential documents after leaving office. Yet they have been “indefinitely postponed” by a district court judge in South Florida. Aileen Cannon, the Trump appointee and decades-long Federalist Society member overseeing the case, denied the Justice Department's request last summer for a December 2023 trial date, setting it for May 20th 2024 instead – notably after the Republican primaries. Since then, Cannon has allowed a questionable series of kvetches by Trump’s legal team to push back the date, and her impartiality as well as her ties to right-wing donors have reasonably been questioned – the standard for mandatory recusal under federal law. In a March hearing where the trial schedule was discussed, Cannon shared her own concern that Trump’s other trials “overlap substantially with the deadlines in this case, presenting additional challenges to ensuring Defendant Trump has adequate time to prepare for trial and to assist in his defense."
Despite both parties agreeing a few months later that a summer trial date was feasible (Trump grudgingly), Cannon adjourned a pre-trial hearing on May 7th without setting a new trial date, stating that “finalization of a trial date at this juncture ... would be imprudent and inconsistent with the Court's duty to fully and fairly consider the various pending pre-trial motions before the Court, critical [Classified Information Procedures Act] issues, and additional pretrial and trial preparations necessary to present this case to a jury."
Tipping the Scales #3 - The Fischer case
SCOTUS decided to hear the appeal of Joseph Fischer, a convicted January 6th insurrectionist, out of supposed concern that the statute used to charge him (and about 300 others) could theoretically be used to suppress legitimate protest.7 Should the Court rule in favor of Fischer, it would cast doubt on the heretofore uncontroversial prosecution of those attacking the Capitol on January 6th, as well as challenge counts in the indictment against Trump.
Yet this eagerness to protect the hypothetical future exercise of non-violent First Amendment speech and assembly was nowhere to be found in another case involving a Black Lives Matter protest. The Court allowed the organizer of that protest, which was non-violent save for a single protester throwing a rock at a police officer, to be sued for that one protester’s actions.
Tipping the Scales #4 - Gerrymandering the 2022 House Midterms
Had the midterm elections been conducted using the 2020 maps or the maps federal courts ordered states to use before the Federalist Society justices overturned them, either Democrats would have held their House majority, or Republicans would have won by at most one seat (218 to 217). The Federalist Society majority decisions allowed four states to use maps in the midterms that violated the Voting Rights Act.8 In Merrill v. Milligan and Arodin v. Robinson, the Supreme Court ruled that Alabama and Louisiana should reinstate the gerrymandered maps that lower courts had ruled unconstitutional. And when SCOTUS used the “Purcell” principle to justify overturning the lower courts’ rulings, it caused a federal judge in Georgia to find that there, too, maps that were likely unconstitutional could not be re-drawn so close to the election.
Beyond that, previous rulings that opened the door to partisan gerrymandering enabled MAGA state legislatures to protect US Representatives who voted against the election from meaningful accountability. Of 122 pro-insurrectionist Republicans who were on the ballot, an astonishing 94 percent faced no possibility of electoral consequences for trying to overthrow the duly elected president. Overall, only seven Republicans who voted against certifying the results of the election ran in a district that even appeared in the Cook Ratings (likely Republican, lean Republican, or toss-up), and two of them lost. On the other hand, of the nine who voted to certify and ran in competitive districts, eight won.
This was no accident. Of those 122 Republicans who voted against the election, 90 were in states in which Republicans drew the lines. Republican line drawers made sure their districts were safe. Of those 90, 89 of them were put in safe districts. Only one was put in a competitive district. (Seriously, just one.)
Tipping the Scales #5 - Gerrymandering and the 2012 Midterms
In 2012, House Democrats won 51 percent of the national vote, but held only 201 seats – 21 seats fewer than their proportion of the vote – depriving Democrats of a trifecta in 2013 and 2014. The gerrymandering penalty remained steep in 2014 (18 seats) and 2016 (23 seats).
Tipping the Scales #6 - The Voting Rights Act and voter suppression
After Barack Obama’s victory in 2008, red states began passing restrictions on voting which were upheld by the Federalist Society justices. And then, of course, in a series of cases beginning with Shelby County, the Court’s right-wing majority all but repealed the Voting Rights Act. As I’ve explained, this decision effectively opened the door to modern-day poll taxes, and the natural result has been suppression of Black voters, especially those in younger generations.
The Voting Rights Act was reauthorized five times after its original passage in 1965, each time by overwhelming bipartisan margins. Yet, in 2013, the five then-Federalist Society justices began to do what no Congress would ever do: dismantle this democracy-defending, democratically passed Act by judicial fiat. Indeed, Justice Scalia acknowledged as much when he turned the meaning of that bipartisan consensus on its head. He cited the VRA’s near-universal public support as evidence of democratic failure requiring judicial intervention to correct (politicians have nothing to gain by overturning popular “racial entitlement” laws).9 Through Shelby County and its progeny, Republicans were able to outsource this dirty work to their Federalist Societies on the judiciary.
As horrible as Scalia’s remark sounds at first, it actually reflected an even more poisonous perspective. Even if you support affirmative action (as I do), it is essential to see the VRA as categorically different, as near unanimous congressional bodies had. The VRA did absolutely nothing to make it easier for Blacks to vote than whites; indeed, in terms of waiting on line, de facto costs of registering, and so on, it was more difficult for Black people to register and vote the day after the VRA was enacted, as it was the day Shelby was heard. The practical purpose of the preclearance requirements was to prevent state and local governments from making that disadvantage worse. The “entitlement” Scalia referred to was nothing more than being protected from laws and rules aiming to further limit targeted groups’ democratic participation.
Ruth Bader Ginsburg had this stinging retort to Roberts’ claim in the majority opinion in Shelby County that the racial turnout gap in covered jurisdictions were no larger than elsewhere in America: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” (The racial turnout gap is the difference between the turnout rate of white and (in this instance) Black voters.)
In his majority opinion Roberts made the completely unsubstantiated assertion that “our country has changed” – waving away the 15,000 page record justifying the continuing need for the VRA, which Congress had compiled to support its nearly unanimous reauthorization (98-0; 390-33) of the Act. The evidence in the record included documentation from the Justice Department and supplementary briefing that the covered jurisdictions continued to make nearly as many attempts as in previous decades to change voting rules in ways that had been rejected by the Justice Department in previous decades. In other words, the situation was not one in which bad motives had to be imputed to the covered jurisdictions to argue that continuing vigilance was necessary. The covered jurisdictions, right up to and including the instigating actions by Shelby County, had not stopped trying to enact discriminatory voting rules.
Moreover, in choosing the racial turnout gap as a metric, Roberts moved the goalposts. By doing so, he was saying it was no longer of any concern if state and local governments made it more difficult for Blacks to vote as long as Blacks were still voting. This was a weird “no harm no foul” approach found nowhere else in the law.
But there’s more. Using shamelessly spurious reasoning, as if to taunt us with their naked power, the majority literally invented the “doctrine of equal [state] sovereignty” for the occasion. Even conservative Reagan Federal Appeals Court appointee Richard Posner declared that “there is no such principle.” So it was especially galling that Roberts had transformed the Jim Crow rallying cry of “states’ rights” into the fancier “doctrine of equal state sovereignty.”
Scholars have tracked the “cost of voting” since the 1990’s by scoring each state based on metrics such as average wait time at a polling place or whether the state allows early voting. As you can see in the graph below, the “cost” of voting dramatically increased between 2008 and 2020 in red states while decreasing substantially in the blue states. (More here.)
Tipping the Scales #7 - Campaign Finance
Citizens United overturned long-standing precedents such as Austin v. Michigan Chamber of Commerce (1990) and portions of McConnell v. Federal Election Commission (2003), which had upheld restrictions on corporate political expenditures. To do so, the majority expanded the scope of the case from the relatively narrow issue about the broadcast of a political documentary and the application of the Bipartisan Campaign Reform Act (BCRA) to address the broader constitutional question of corporate political spending.
Beyond that, there was inadequate consideration of the factual record and empirical evidence regarding the impact of corporate spending on political corruption and the electoral process. The majority based their argument on abstract principles of free speech rather than a careful analysis of how corporate spending affects the political landscape. This approach has been criticized for lacking a thorough examination of the potential real-world implications of the ruling.
Moreover, the ruling showed lack of deference to Congress, which had just passed the BCRA with the intent of curbing corruption and the appearance of corruption in politics. In other words, on a strictly partisan 5-4 vote, the Federalist Society majority struck down bipartisan congressional action. In 2010, the Congress was still a more bipartisan body than the Court.
The next graph shows that, adjusted for inflation, total spending on congressional and presidential campaigns was barely more in 2008, the last presidential election before the Citizens United ruling, than it was in 2000. But in 2020, spending for the presidential campaign was nearly twice what it was in 2008, and spending for congressional campaigns more than twice what it was in 2008. Moreover, studies have consistently shown that Citizens United significantly increased Republicans’ success in state legislative races. For example, this study “analyzed data from more than 38,000 state legislative races between 2000 and 2012, in both groups of states.” It concluded, “The chance of Republican candidates winning state legislative seats increased by about four percentage points on average as a result of Citizens United,” findings confirmed by a subsequent study.
Tipping the Scales #8 - Bush v Gore
Much has been written about Bush v. Gore. In many ways, it set the template for the strictly partisan electoral decisions to come. It is worth remembering that when SCOTUS shut down the vote count in Florida on dubious legal grounds, it was also on the basis that the recount ordered by the Florida Supreme Court couldn’t be completed by the statutory safe harbor day. But, in fact, the count was well underway the afternoon of the ruling and was likely to have been completed before safe harbor day.10
WIth respect to the ruling, Justice Stevens concluded that the counting of legal votes could never constitute an “irreparable harm”—which stays are supposed to prevent. Furthermore, he wrote in dissent:
To stop the counting of legal votes, the majority today departs from three venerable rules of judicial restraint that have guided the Court throughout its history. On questions of state law, we have consistently respected the opinions of the highest courts of the States. On questions whose resolution is committed at least in large measure to another branch of the Federal Government, we have construed our own jurisdiction narrowly and exercised it cautiously. On federal constitutional questions that were not fairly presented to the court whose judgment is being reviewed, we have prudently declined to express an opinion. The majority has acted unwisely.11
In 2001, the National Opinion Research Center (NORC) at the University of Chicago, sponsored by a consortium of major United States news organizations, conducted the Florida Ballot Project, a comprehensive review of 175,010 ballots that vote-counting machines had rejected from the entire state, not just the counties that conducted manual recounts. They concluded that if the disputes over the validity of all the ballots in question had been consistently resolved and any uniform standard applied, the electoral result would have been reversed and Gore would have won by 60 to 171 votes.
The illusion of democratic resilience in the 2020 post-election cases
For the last several years, we’ve taken at face value that “democratic institutions held” in part because Republican election administrators like Brad Raffensperger, Justice Department officials like Bill Barr, and a Supreme Court packed with three Trump appointees rejected Trump’s efforts to overturn the results of the 2020 election at every turn. Typical of this sentiment was reporting like, “In Key States, Republicans Were Critical in Resisting Trump’s Election Narrative: They refuted conspiracy theories, certified results, dismissed lawsuits and repudiated a president of their own party.”
This narrative is dangerously flawed because it takes no account of the incentives of each of those Republican actors: They faced a classic prisoner’s dilemma because immediately after the election, Biden was seen to have flipped Arizona and Georgia as well as the more expected Michigan, Pennsylvania and Wisconsin. That was crucial because it meant that for Trump to win the Electoral College, three of those five states would have to reverse the results. Thus, on January 2, 2021, when Trump asked him to find 11,780 votes, Brad Raffensperger knew that even if he did, unless two of the other four states did the same, Biden would still be sworn in, and he, Raffensperger, would be exposed to prosecution for very serious felonies. And remember, the secretaries of state of the other four states were Democrats.
Trump’s allies on the Supreme Court faced a similar, but not identical, dilemma. Unlike in 2000, when Bush’s allies on the Court had to make only one ruling (albeit unprecedented and controversial) to appoint him president, reversing the results of the 2020 election would have meant overturning elections in three states decided by tens of thousands of votes instead of one “decided” by less than 600 votes. Especially given the business community’s clearly stated commitment to a peaceful transfer of power, intervention would have been a bridge too far. But, more important than that, it’s important to remember that before January 6th, Trump’s Republican establishment foes, including Mitch McConnell, were fairly pleased with the election result. They felt it was win-win – voters would sweep Trump out of their lives, and if, as they expected, Republicans won at least one of the two run-offs in Georgia, they would have a Senate majority to make Biden a harmless one-term president.
Conclusion: The Hijacked Court
The history of the corporate and religious right campaigns to capture the courts and hijack democracy itself has been so exhaustively documented elsewhere that there’s no need to recite it here.12 What’s important to understand now is the result of that campaign. Since the Federalist Society was founded in 1982, the Court has transformed from an imperfect arbiter of genuine controversies to an agenda-driven, unelected lawmaking body whose decisions have systematically been opposed by the majority of Americans. Federalist Society majorities have acted with ever-increasing impunity to leverage the power granted to them by an ever-diminishing proportion of Americans, as reflected by the presidents who nominate them and senators who confirm them. Thus, it’s long past time to stop covering the Court as if it is anything other than an unaccountable super-legislature enacting an unpopular revanchist agenda.
Justices Thomas, Alito, Gorsuch, Kavanaugh and Barrett are the only five of the 116 justices to serve on the Supreme Court to have been confirmed by senators representing less than one half of the US population. Only John Roberts among current GOP justices was confirmed by senators representing a clear majority of Americans. The panel on the left shows how dramatically different that was just 24 years ago, when, with the exception of Clarence Thomas, every justice on the Court was confirmed by senators representing at least two thirds of the US population, and six were confirmed by senators representing 90 percent of the US population.
Furthermore, of all the justices to serve in the last century and a half, Gorsuch, Kavanaugh and Barrett are the only ones to have been named by a president who did not win the popular vote. And, of course, Gorsuch and Barrett both owe their seat to Mitch McConnell. That is the case with Gorsuch because McConnell illegitimately refused to fill a vacancy when Obama was president. It is true of Barrett because McConnell illegitimately rammed through her nomination after tens of millions of Americans had cast their ballots, and as every survey and forecast indicated that Biden would be the next president. Moreover, although it was obvious at the time, it has since been more substantiated that both Thomas and Kavanaugh perjured themselves at their confirmation hearings.13
As recently as 2000, even the justices that gave us Bush v. Gore had been confirmed by senators representing regions in rough proportion to the country as a whole (left panel). But just two decades later, we can see that putting Thomas aside, the Supreme Court is now as divided sectionally as the Congress and as the Electoral College.
I offer these reflections not to inspire despair. If we are to find solutions to the cancer of autocracy creeping through the American body politic we must be candid with ourselves and each other about the nature of the disorder. It has profoundly corrupted our judiciary. In future essays, I will turn to the solutions. There are many, but they must start with Democratic voters understanding the stakes when they go to the polls, as Republicans long have. That must start with the 2024 election if we are to maximize our hopes of surviving as a democracy.
As James Baldwin inspired us, “Not everything that is faced can be changed, but nothing can be changed until it is faced.”
For more Weekend Reading on SCOTUS:
For more Weekend Reading on Trump Accountability:
Weekend Reading is edited by Emily Crockett, with research assistance by Andrea Evans and Thomas Mande.
Assuming that they don’t grant absolute presidential immunity whatever the specifics, the case will be remanded to the district court.
To be clear, the argument is not that Federalist Society judges are committed to Trump per se (although Judge Cannon and many others clearly are). Rather, they are committed to the Federalist Society project of transforming the legal system, which Trump gives them the best chance of fulfilling. (And more below on the 2020 post-election rulings which went against Trump, and are often held up as incontrovertible evidence that their judgments are not political. As I explain, they should hardly give us confidence.)
This is a by no means certain prospect, since the hardened partisans Alito and Thomas will of course do everything in their power not to afford Biden the opportunity.
Here are the cases:
Warren Court: Baker v. Carr (6-2); Gomillion v. Lightfoot(9-0); Gray v. Sanders (8-1); Harper v. Virginia Board of Elections (6-3); Reynolds v. Sims (8-1); South Carolina v. Katzenbach(8-1).
Burger Court: Buckley v. Valeo(7-1); City Of Mobile, Alabama v. Bolden (6-3); Oregon v. Mitchell(5-4); Richardson v. Ramirez (6-3); Thornburg v. Gingles (9-0).
Rehnquist Court: Austin v. Michigan State Chamber Of Commerce (6-3); Bush v. Gore(5-4); Mcconnell v. Federal Election Commission(5-4); Shaw v. Reno, (5-4); Miller v. Johnson (5-4).
Roberts Court: Abbott v. Perez (5-4); Allen v. Milligan (5-4); Arizona Free Enterprise Club's Freedom Club PAC, v. Bennett (5-4); Brnovich v. Democratic National Committee (6-3); Citizens United v. Federal Election Commission (5-4); Mccutcheon v. FEC (5-4); Moore v. Harper (6-3); Rucho v. Common Cause (5-4); Shelby County v. Holder (5-4); Crawford v. Marion County Election Board (6-3), Alexander v. South Carolina State Conference of the NAACP (6-3).
Another exception was the 5-4 ruling in Moore v. Harper, where Federalist Society interests were divided. See my post, “Don’t Be Surprised by Moore v Harper.”
Manhattan DA Alvin Bragg had indicated he would postpone his Manhattan trial in order to make that possible.
For instance, Gorsuch asked, “Would a sit-in that disrupts a trial or access to a federal courthouse qualify? Would a heckler in today's audience qualify, or at the State of the Union address? Would pulling a fire alarm before a vote qualify for 20 years in federal prison?” It’s also worth noting that while the statute in question does have a maximum sentence of 20 years, none of the January 6th defendants have received punishments nearly that severe under that statute.
I am not including the Court ordered rewrite for New York because that is something that reasonable people might disagree with – my goal for this post is to show that you don’t have to pile up a bunch of ifs to get to the conclusion I reach.
“I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement,” Justice Scalia said fifty-one minutes in. “It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. I don’t think there is anything to be gained by any senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless a court can say it does not comport with the Constitution … You have to show, when you are treating different states differently, that there’s a good reason for it. This is not the kind of a question you can leave to Congress.” Quoted in Berman, Ari. Give Us the Ballot (p. 274). Farrar, Straus and Giroux. Kindle Edition.
Toobin, Jeffrey. The Nine (p. 189). Knopf Doubleday Publishing Group. Kindle Edition.
Toobin, Jeffrey. The Nine (p. 191). Knopf Doubleday Publishing Group. Kindle Edition.
See works such as Jane Mayer’s Dark Money, Nancy MacLean’s Democracy in Chains, Anne Nelson’s The Shadow Network, Alexander Hertel Fernandez’s State Capture and Sheldon Whitehouse’s Captured and The Scheme: How the RIght Wing Used Dark Money to Capture the Supreme Court and Michael Klarman’s The Degradation of American Democracy — And the Court.
This report should be required reading in every high school history or government class. The DNC should distill the main points about election interference at the beginning of the piece and pound on them until November 5th.
Plopping an elephant onto the scales.
Thanks for this thoroughgoing analysis.