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WASHINGTON, DC: Democrats called it the US presidential “pick.”
In 2000, the United States Supreme Court declared that its 5-4 decision to stop Florida’s recount that handed the 2000 election to George W Bush was destined to be unique.
Twenty years later, it seems like a worryingly relevant precedent.
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The risk that robed-clad life appointments will be resolved in next week’s election is neither trivial nor likely. It is somewhere in the middle.
Common sense dictates that in a contested election between Donald Trump and Joe Biden, the instinct of the Supreme Court would be self-preservation.
In a narrow recount of polling stations in which Biden had won the popular vote, another judicial “selection” could undermine his legitimacy.
The risk to the independence of the court of deciding in favor of Trump would be high.
The White House is available every four years, while Supreme Court appointments are for life.
JUDICIAL INTERFERENCE IN ELECTIONS
Amy Coney Barrett, who was confirmed this week, could sit on the stand for decades, which means the Conservatives can likely count on a judicial majority for many presidential terms.
FILE PHOTO: Judge Amy Coney Barrett speaks after being nominated to the United States Supreme Court by President Donald Trump. (Photo: AFP / Olivier Douliery)
Why gamble with such rich winnings? That is why most constitutional scholars believe that the court will do everything possible to avoid intervening in the 2020 elections.
But survival is not the only instinct. A contradictory impulse would be to avoid a constitutional collapse.
It is possible that Biden will win Florida on Tuesday night and put an end to all the speculation.
If not, the chances of a series of court battles over vote counting are high. The Supreme Court has ruled on cases involving four states in the last month alone.
In the cases of South Carolina and Wisconsin, he ruled to make voting difficult.
Although it maintained Pennsylvania’s three-day extension for postal ballots, the court left some leeway to return to the issue next month.
The judges also left the North Carolina extension for the nine-day mail-in ballots in place.
The stated logic behind some of these decisions has not been reassuring.
WHAT THE SUPPRESSION OF VOTERS LOOKS LIKE
Brett Kavanaugh, who was confirmed in late 2018 as the second of Trump’s three appointments, cited the previously banned Bush vs. Gore ruling in support of a ruling to stop an extension of the deadline for Wisconsin mail ballots.
Their second face-to-face debate was canceled, but Joe Biden and Donald Trump will hold separate town hall events at the same time AFP / JIM WATSON, SAUL LOEB
In the South Carolina ruling, which mandated that postal ballots must be endorsed, it also argued that decisions of state legislatures “normally should not be subject to doubt” by federal judges.
Most of the changing state legislatures, including Florida, Wisconsin, Michigan and Pennsylvania, are Republican.
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If any of them override their state’s popular vote and pledge their constituents to Trump, Kavanaugh has made his sympathies known.
The same applies to at least three of your colleagues. Mrs. Barrett could get the most.
Three of the nine justices, Chief Justice John Roberts, Mr. Kavanaugh, and Ms. Barrett, served on George W Bush’s Florida legal team.
Time does not diminish the shock capacity of the 2000 Supreme Court ruling.
To justify its decision, the court cited the 14th Amendment Equal Protection Clause that was adopted after America’s civil war to put African Americans on the same legal footing as whites.
Antonin Scalia, one of the majority judges, later described that rationale as a “piece of shit.”
The late Mr. Scalia is the patron saint of originalist doctrine that much of the court now subscribes to.
“EVERYTHING IS POSSIBLE” THIS NEXT ELECTION
In theory, originalism is about sticking to the letter and intent of the constitutional text, or “calling for balls and strikes,” as Roberts described it.
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In practice, originalist interpretations are often reminiscent of French deconstructionism.
In recent years, the court has issued a number of rulings that have increasingly made voter suppression easier.
File photo of the Deputy Justice of the Supreme Court of the United States, Ruth Bader Ginsburg. (Photo: REUTERS / Jim Young)
It destroyed the Voting Rights Act of 1965 in 2013 on the grounds that the protection of minority rights was no longer necessary.
As the late Ruth Bader Ginsburg put it in her dissenting opinion, it was “like throwing your umbrella in a storm because you’re not getting wet.”
When asked repeatedly during her confirmation hearings about how she would deal with any appearance of impropriety that would result from her ruling on election cases, Ms. Barrett only pledged to “fully and faithfully apply the disqualification law.”
Given that she was hastily confirmed a week before the election and was sworn in by Trump within hours, it’s unclear what that means.
Under a conservative reading of the language that originalist judges use in their opinions, many things are possible in the coming weeks.
Edward Luce is the US national editor and columnist for the Financial Times. Luce was previously the speechwriter for US Secretary of the Treasury Lawrence H. Summers in the Clinton administration.
