So determined is the media to make Biden president that, when a Secretary of HHS called Biden “The former Vice President” on Sunday, host Chris Wallace insisted he be called “President-Elect,” twice. Trump’s cabinet member declined, rightly. President-elects are minted by Electoral College, not before.
Here is the point. Democrats and media can try to intimidate Republicans, Hill moderates, other media outlets, and average Americans into calling Biden “President-Elect,” but they cannot make it so. More to the point – something they hate – they cannot intimidate the Supreme Court.
The High Court is above politics, literally and figuratively. They are institutionally the non-political branch, configured to assess whether constitutional law was broken, fraud occurred, state tallies not trustworthy, and key states “in dispute” – forcing this race into the House, one vote per delegation, to decide the outcome. Notably, Republicans have more delegations.
The High Court is empowered to “say what the law is” (Marbury v. Madison, 1803), which includes whether a state constitution has been overrun by statute – affecting federal elections and violating the US Constitution. That is one case coming out of Pennsylvania, which Justice Alito – overseeing the 3rd Circuit – has now asked be briefed, on Tuesday, December 8th.
Likewise, the High Court is empowered to determine whether Republican-controlled state legislatures – in states where fraud allegations are rife, including Pennsylvania, Michigan, Arizona, and Georgia – can constitutionally choose to send Republican electors to vote at the Electoral College, rather than a Democrat slate, on the basis of suspected vote fraud.
Then again, the Supreme Court can decide if, as in 2000, an “equal protection” claim is valid –throwing out potentially hundreds of thousands of votes in places like Pennsylvania, Michigan, Wisconsin, Arizona, Nevada, and Georgia – for disparate treatment of voters, county to county.
And if that were not enough, the Supreme Court is positioned to take up – if they choose, one or more other cases “dismissed” by Democrat appointed state judges in a raft of swing states.
Main points are three.
First, while the week ahead is critical for assessing which issues will be deemed justiciable, that is, able to be heard by the Supreme Court prior to the Electoral College vote on December 14, a gaggle of cases are competing for Supreme Court attention.
Second, if just one is accepted by the Supreme Court – just one – odds of a rethink about the law governing federal elections and the presidential election, maybe on efficacy of mass mail-in voting, timing, role of legislatures, or other constitutional issues – will be on the table.
To get there, only four Justices must – behind that curtain – consider an issue important enough to warrant review. If four do, count on a fifth. That could have implications for the future.
Third, most importantly, the US Supreme Court is composed of judicial conservatives and judicial liberals, or activists. It is not composed of political actors. The distinction is often lost, but very important. If the Constitution – strictly and properly read – bars accepting certain practices and was designed to stop certain types of abuses, the Court is likely to say so.
The essential point – laser focus – is this: The Supreme Court does not care what Chris Wallace or anyone in media, think. Having spent time with some Justices, they give no quarter to media, but have heads in law books. That means you cannot “game” the Supreme Court, bending them.
The Supreme Court – or majority now – are about doing what is right by the Constitution, not responding to political pressure, threats, or concerns about court-packing, muffling, or minimizing authority. They do not care whether constitutional rulings match the latest polls, pundits’ constant puffery, or politically correct norms. They are about the law.
Here is where, if you want hope, you should look. The law is a majestic thing, Constitution the pinnacle of rule of law’s majesty, and it bends to no man’s politics. It is about natural law, intergenerational promises, doing things right because right is right, the rest be damned.
The possibility remains that Donald Trump could pull this election out, and it now has nothing to do with politics. It has to do with disposition of the majority on the Supreme Court, whether the cases and record on review are strong, what a majority thinks of the law – not whether some collection of self-righteous lily-gilders in the media think Biden is “President-elect” or not.
To be clear: President-elects are minted by the Electoral College, operations are determined by the US Constitution, meaning of which is adjudicated by the Supreme Court. The rest is puff.