Posted Wed, January 6th, 2021 10:15 pm by Tom Goldstein
Soon, the Supreme Court is likely to deny several cert petitions filed by the president and his allies that challenge the election. There is no legally serious challenge to the results certified by any state. President-elect Joe Biden’s victory does not depend on the electors of any individual state that is being challenged. So, either upon Congress’ certification of the electors or the inauguration, the petitions are functionally moot.
The court can deny the petitions without comment. That is its ordinary practice. But every day, it has become more apparent that the justices should write a unanimous opinion confirming the validity of the election results — for the sake of our democracy.
Donald Trump and his allies have misled tens of millions of people into believing that Biden is not the validly elected president. A huge proportion of the Republican Party believes that there is a massive conspiracy — now assertedly including the justices themselves — to overthrow democracy and steal the presidency.
This is no joke. Donald Trump’s supporters successfully stormed the Capitol — read that again — seeking to block the constitutionally mandated counting of the states’ electoral votes. A woman was shot; she is dead. The same anarchy could have erupted in the court’s own chamber.
Physical order in that one building has been restored, for now. But the constitutional order has not. And without the intervention of a truly trusted national institution, it will not be. Our elected officials have proven that they cannot overcome Donald Trump’s narcissistic sociopathy.
This is not a plea for the court to “do something.” Genuine respect for its role requires recognizing and adhering to the limits on its power — both with respect to resolving actual cases and controversies and to faithfully applying the law. But the reverse is no less true. Here, the court has before it several matters that it is in fact going to dispose of on the basis that Joe Biden was validly elected president. When that fact has so thoroughly been deemed fiction in the pursuit of utterly undemocratic ends, the court’s power and responsibility easily extend to issuing an opinion that contains a straightforward description of reality.
It is not too much for the court to issue an opinion stating forthrightly that the challenges to the election results are — according to every single court ruling and independent review — based on lies and fabrications. That is a fact. Saying less is much too little.
The Constitution embodies various checks and balances. But the branches of government do not have to compete. They can support each other. At the opening of its proceedings, the court’s marshal cries for God to “save the United States” first, not merely “this honorable court.” This is a time for the court to look toward the greater good of the nation. Numerous lower court judges have done just that, by calling out how frivolous and mendacious Donald Trump’s challenges truly are.
The Supreme Court should join them. Together, the justices represent all ideologies. Several are celebrated heroes of Donald Trump’s most fervent supporters. No other governmental or non-governmental entity is remotely so respected. Speaking unanimously now obviously will not fix everything. But there is a part of the country aching for someone they trust to explain that our democracy functioned as it should, so that the results can be trusted and should be respected. Help them.
Recommended Citation: Tom Goldstein, Editorial: Another call for the justices to speak to the country, SCOTUSblog (Jan. 6, 2021, 10:15 PM), https://www.scotusblog.com/2021/01/editorial-another-call-for-the-justices-to-speak-to-the-country/