Sunday, March 7, 2021
March 7, 2021

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Feldman: Texas asks high court for a coup


Texas has filed an application to the Supreme Court to initiate a lawsuit against Pennsylvania, Michigan, Wisconsin and Georgia — four swing states that Joe Biden won in the presidential election. The lawsuit is a piece of theater, not a credible legal strategy.

The lawsuit exploits a quirk in the Constitution that allows a state to sue another state directly in the Supreme Court, without starting in the lower courts. That gives the justices an opportunity to weigh in.

It’s unlikely that the justices will say anything about this suit, allowing it to become moot once President-elect Biden is sworn in. And if any of the justices do issue a statement, it won’t change the election outcome.

Nevertheless, the attempt reflects a deeper perception of the court — and that perception is worrisome. President Donald Trump has made it clear he would like the Supreme Court to somehow find a way to overturn the vote.

In Trump’s fantasy world, apparently shared by Texas Attorney General Ken Paxton, the Supreme Court will engage in a constitutional coup d’etat and give Trump a second term. This idea is based on a view of the court as entirely partisan. It’s disrespectful of the rule of law. And it’s wrong, whether held hopefully on the right or fearfully on the left.

While the rule of law is a wonderful thing, and the Constitution does create a tripartite system of government, the Supreme Court isn’t supposed to overthrow elections in the name of “balance” (to use another of Adams’s favorite words).

The Texas lawsuit is literally asking the court to disqualify the electors from the four swing states that went to Biden. That would plunge the country into a constitutional crisis. It would be the end of democracy in the United States. A majority of nine justices would have replaced 330 million citizens as our rulers.

It’s possible that the fantasy that the court would do this is rooted in a mistaken understanding of what happened in the Bush v. Gore case. Trump and the Texas lawyers seem to think that problematic case amounted to the Supreme Court giving the election to George W. Bush when Al Gore had in fact won.

The reality was more complicated. The justices back in the year 2000 stopped a recount that, at the time, was believed to have the possibility of giving the closely contested election to Gore. To be sure, that decision relied on a bizarre interpretation of the equal protection clause to say that differences in recount techniques violated the Constitution. But the whole problem that Bush v. Gore addressed was a situation in which it was genuinely unclear who had won the election. It came down to just a handful of votes. The result was, in effect, a coin toss — and the justices stopped the coin from being tossed, assuring that Bush won. I think that decision was blatantly wrong, but in any event, multiple subsequent recounts suggested that Bush would’ve won anyway.

Regardless of whether a mythic version of Bush v. Gore is to blame, it’s bad for the functioning of our democracy that elected officials like the Texas attorney general (to say nothing of Trump) think it is acceptable to go on the record asking the Supreme Court for a coup d’etat.

The justices are sometimes ideological when it comes to jurisprudence. Some of them are sometimes partisan. Bush v. Gore had unfortunate partisan overtones. But the Supreme Court would not break democracy.

Noah Feldman is a Bloomberg Opinion columnist and professor of law at Harvard University.


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