Supreme Court deals reality check to Trump’s post-election legal fight
The Supreme Court on Tuesday dealt a reality check to President Trump’s far-fetched bid to overturn his election loss through the courts, just hours after he implored the justices to clear a path toward his second term despite having lost the race by more than 7 million votes.
To court watchers, it came as no surprise to see the justices deny an emergency bid by Trump-allied Pennsylvania Republicans to nullify President-elect Joe Biden’s certified victory in the Keystone State — a state Biden won by more than 81,000 ballots.
For Trump, however, the justices’ defiance of his plea prompted a now-familiar refrain amid his series of disappointing post-election court fights, with Trump downplaying the significance of the loss while reassuring supporters that his increasingly desperate legal campaign would ultimately secure his reelection.
“This was not my case as has been so incorrectly reported,” Trump wrote on Twitter of the case brought by his GOP allies in Pennsylvania. “The case that everyone has been waiting for is the State’s case with Texas and numerous others joining.”
On Wednesday afternoon Trump asked the Supreme Court for permission to intervene in the audacious petition filed yesterday by Texas. The suit seeks to invalidate the election results from Pennsylvania, Georgia, Michigan and Wisconsin, key battleground states that Biden won on his way to reaching 306 electoral votes.
But election law experts who accurately predicted the Pennsylvania Republicans’ emergency application would be rejected by the Supreme Court said the Texas case will suffer a similar fate.
“I may need to take back what I said about Rep. Kelly’s PA suit being the dumbest case I’ve ever seen filed on an emergency basis at the Supreme Court,” Rick Hasen, a law professor at the University of California, Irvine, wrote on the Election Law Blog. “This new one from the indicted Texas AG Ken Paxton … probably should win that prize.”
Similarly, legal experts expect that even if the Supreme Court were to agree to take up a forthcoming appeal petition from the Pennsylvania Republicans who were rebuffed Tuesday, the justices almost certainly will not intervene before the electors vote to finalize Biden’s victory next week.
According to some legal scholars, it became clear in the days after the Nov. 3 vote that the Trump campaign lacked the kind of claims and evidence needed for a court to overturn the result of the 2020 presidential race.
“Since then, all that has happened is that the claims have gotten more outlandish, the better lawyers have fled the campaign, and judges of all stripes — federal and state, whether appointed by Democrats or Republicans, including Trump appointees — have administered the formal death rites to this attempt,” Rick Pildes, a law professor at New York University, previously told The Hill.
If the walls were already closing in on Trump’s post-election legal strategy, the fast-approaching Dec. 14 Electoral College meetings, plus Tuesday’s repudiation by the Supreme Court, have only accelerated the pace.
By some estimates, the campaign and its allies have lost or withdrawn in more than 50 rounds in state and federal court and prevailed in only one case, a narrow win that affected only a tiny sliver of mail ballots in Pennsylvania.
Trump’s legal team has tried to airbrush its abysmal win-loss record by portraying the lower court defeats as part of a broader plan to reach the Supreme Court.
“Frankly, this is a case we would like to see get to the Supreme Court,” Trump lawyer Rudy Giuliani said last month after a loss in a Pennsylvania election lawsuit. “So, you know, we’re prepared in some of these cases to lose and to appeal and to get it to the Supreme Court.”
But the Trump legal team’s strategy of resetting expectations and building hopes around the justices was severely undercut by the justices’ move on Tuesday. And if experts’ predictions are borne out, the Supreme Court — also known as the United States’s court of “last resort” — will represent a kind of terminus that no amount of rhetorical goal post-moving can budge.
Perhaps deepening Trump’s sense of disappointment Tuesday was the fact that the court’s order denying the Pennsylvania GOP bid came shortly after he implored the justices to grant relief in his favor.
“Let’s see whether or not somebody has the courage, whether it’s a legislator or legislatures, or whether it’s a justice of the Supreme Court or a number of justices of the Supreme Court,” Trump said during a coronavirus vaccine summit. “Let’s see if they have the courage to do what everybody in this country knows is right.”
Hours later, however, the justices issued an unsigned order siding against Trump’s allies. The denial carried no noted dissents — including from any of the three justices appointed by Trump.