The dire consequences of the “coup” threatened by Supreme Court justices — America on the brink

The “Right-Wing Four” on the Supreme Court are threatening what an eminent legal scholar calls a “post-election coup” by suppressing votes for the purpose of delivering the presidential election to Donald Trump. The consequences of such a coup would include civil disorder that quickly could escalate out of control.

I am going to add my two cents to the comments made by Professor Lawrence Tribe of Harvard Law School and political scientist Steven Mazie in an op-ed in the Boston Globe captioned “Conservative Supreme Court justices are threatening a post-election coup.” In comparison to the views of scholars as well-regarded as Tribe and Mazie, my thoughts are insignificant.

I believe that it is important as a lawyer, however, to lay down a personal marker as to where I stand on this issue. Furthermore, I believe that every lawyer who believes that he or she has enough information and knowledge to form an opinion on the subject should do the same.

I concur with the observation by Thomas Friedman of the New York Times that “America is on the ballot on Tuesday.” Therefore, this is no time for fence sitters. You are either for America or you are against it, and that includes judges and lawyers. Stand up and be counted.

Tribe and Mazie take particular umbrage with the position of Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas, whom they characterize as the Right-Wing Four, that any measures taken by state election officials in light of the pandemic to ensure that ballots are safely cast and counted that are not explicitly endorsed by a state’s legislature can be overturned by the Supreme Court, even if the measures have been upheld by state courts. I am not going to repeat their entire analysis, but suffice it to say that they point out how the position makes a mockery of America’s constitutional design.

Tribe and Mazie call the position taken by the Right-Wing Four “frightening.” I would also describe it as arrogant, partisan, and anti-democratic, and part of the efforts by Republicans to suppress the vote and steal the election from Democrats. It cannot be allowed to stand, no matter what it takes to stop it. It would be, as the authors state, nothing less than a judicially-sanctioned coup.

Tribe and Mazie know full well the implications of describing what the justices are doing as a threatened coup. That term lays at the feet of the Supreme Court the responsibility for the inevitable response to such an attempt, which will include widespread civil unrest at best, and outright insurrection at worst. I am not sure non-lawyers recognize how grave an accusation the authors make against the justices — remarkable, in fact, coming from a lawyer of Tribe’s stature.

The matters in litigation fall into two general categories of measures taken by state election officials. The first involves procedures such as ballot drop boxes and “curbside” drive-through voting introduced by state election officials in light of two unanticipated contingencies: The COVID-19 pandemic and the collapse in the efficiency of the United States Postal Service (USPS).

The second, and more common category, involves extensions of deadlines for mailing or receiving mail-in ballots. Keep in mind that, no matter what Donald Trump or Justice Kavanaugh may believe, there is no legal requirement that the election be “decided” on November 3rd. None of the extensions would affect the time within which election results must be certified and reported to Congress.

What makes this issue all the more explosive is the undeniable evidence that the USPS was hamstrung by the Trump administration for the express purpose of disrupting mail-in balloting during a pandemic that made it unsafe for many voters to vote in person. In other words, federal judges who choose to follow the position staked out by the Right-Wing Four will be complicit in the most cynical and evil voter suppression scheme in United States history.

In my opinion, there is a line in the sand that members of federal judiciary cannot cross without forfeiting their legitimacy. That line will be crossed if ballots cast and counted in accordance with measures approved in good faith by state election officials are thrown out by a federal court on purely technical, procedural grounds without proof that the ballots were fraudulent or inaccurate.

Voting is not a game or some legal maneuver. It is an exercise of a right central to any democracy. State officials who exercise their discretion to try to assure that every citizen eligible to vote can do so and do so safely should not have to concern themselves with arcane (and specious) second-guessing by federal judges.

Disenfranchising voters should be the absolute last thing that that a federal judge wants to see happen — and throwing out votes certainly is not an appropriate remedy for “punishing” state election officials whom federal judges believe violated state election laws. A federal judge who blocks or throws out votes for anything other than the most compelling reason — and a purported technical violation of state election law alone is not such a reason — is telling us that his or her motives have nothing to do with jurisprudence, and everything to do with political partisanship.

A federal judge who suppresses votes based on partisanship has crossed a line into uncharted, dangerous territory. He or she has gone outside his or her legitimate role, and no longer deserves the respect due a member of the judiciary. In my mind, judges or justices who try to suppress votes or help Republicans steal the election are, as Tribe and Mazier suggest, nothing more than outlaws aiding and abetting a coup attempt.

Do I feel some reluctance to arrogate to myself the prerogative to decide that a judge or justice has crossed that line? Of course. But with over 40 years of practicing law under my belt I have no doubt at what I am seeing, and it extends to certain justices of the Supreme Court.

To paraphrase the observation by Supreme Court Justice Potter Stewart about obscenity, I know raw partisanship when I see it. And the raw partisanship by members of the federal judiciary as they stretch and strain the law to deliver the election to Donald Trump is obvious, and indeed obscene.

I believe in respect for the judiciary. But that respect is not unconditional. In a matter of this gravity, deference to judicial authority becomes acquiescence and then complicity. Judicial respect depends on judges and justices remaining non-partisan and apolitical in their decisions; once they stray outside of their judicial roles and become nothing more than dangerous political hacks they should expect to be treated as such.

If, after the election, the American public gets the slightest whiff of the type of coup attempt described by Tribe and Mazie, there will without any doubt be civil disorder and riots. How bad things get on the streets will depend on how far federal judges, and especially the Supreme Court, are willing to go to return Donald Trump to the White House.

And if there are riots and destruction, the fault will not lie with the public. It will fall squarely on the shoulders of the hacks appointed to the federal bench by Republicans.

There will be massive protests at the Supreme Court when the cases are heard. I do not want mobs to show up with torches and pitch forks but I also do not care if the justices believe that might happen. The only hope to avoid a coup may be if the justices come to understand that the consequences to them may be intensely personal if they allow their personal political beliefs to interfere with their legal judgment.

I will restate that as a question: Are the Right-Wing Four so out of touch with reality that they believe that they can make a gratuitous frontal assault on the right of Americans to self-determination without things getting truly ugly?

Newly-appointed justice Amy Coney Barrett may be the justice who casts the deciding vote on the election cases. By all accounts she is, on a personal level, thoughtful and kind. She has, however, lived in a bit of bubble. She was brought up within the protective cocoon of the People of Praise, and spent years on the faculty of the University of Notre Dame and then a brief period on the federal bench. In other words, she does not have a lot of what most of us would describe as rough and tumble, real-world experience. She could be in for a rude awakening.

If she casts the deciding vote in favor of voter suppression, and thereby steals the election on behalf of Donald Trump, she will live the rest of her life as a person despised by over half the country. She will never again be able to go out in public without fear of being shamed and insulted. And she will deserve it.

She and the other justices need to think about that — this is personal for them because it is very personal for us. This is about whether our democracy lives or dies in the United States. The stakes could not be any higher, and the justices should think twice before they take away from the people the right to decide their own fate — because the people will never forgive them for that.

I pray that we avoid the type of violence that I fear; I pray that the Right-Wing Four come to their senses and abandon their extrajudicial quest to put their favored candidate in the White House. I wish I was more optimistic. Be ready for the worst.

Retired lawyer, former prosecutor, former social worker, Army vet — former lots of things. Commentary published in Washington Post, Baltimore Sun and elsewhere.

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