The latest big loss in the overwhelmingly failed effort has been met, as with its many predecessors, with some remarkable spin. But both of the prevailing claims ignore the reality of the situation.
Beginning Friday night, Trump’s aides and supporters set about arguing two things:
- The court made no ruling on the merits of the suit — that they essentially punted on a technicality — and that this means the claims could still have merit.
- That the stated disagreements in the order of Justices Samuel Alito and Clarence Thomas suggest there was some merit. Indeed, some have even hailed Alito and Thomas as heroes, in contrast to the three Trump-appointed justices who declined to take a stand.
White House press secretary Kayleigh McEnany summarized the former argument Friday night on Fox News.
“There’s no way to say it other than they dodged,” McEnany said. “They dodged, they hid behind procedure and they refused to use their authority to enforce the Constitution. … This was on standing, dismissed on standing. None of the justices gave a view on the facts of the case …”
Trump on Saturday morning also promoted the idea that Alito’s and Thomas’s statement rendered them defiant defenders of his rightful election. He retweeted a user who said, “Thank you, Justice Alito. Thank you, Justice Thomas.” In another tweet, he quoted Sean Hannity saying, “Justices Alito and Thomas say they would have allowed Texas to proceed with its election lawsuit.”
“Never even given our day in Court!” Trump proclaimed.
Except he has — and this is merely the latest in a never-ending string of losses.
Let’s deal with the latter claim first. The idea is pretty simple: that Alito’s and Thomas suggest maybe there was something there — that it wasn’t unanimous! There was indeed some confusion Friday night, with some critics of Trump’s legal strategy suggesting the two justices had participated in his effort to undermine democracy. And plenty besides Trump and those he quoted hailed the justices.
The justices’ statements, though, are considerably less significant than all that.
As The Post’s Supreme Court guru Robert Barnes and many others noted, the Alito statement echoed the long-standing positions of the two justices, which is that the court’s “original jurisdiction” means it must accept such a case involving conflicts between states. Their disagreement on that point, in fact, was merely a matter of course for them — something they’ve done before — not any kind of commentary on the substance of the claims.
And indeed, they actually made a pretty significant statement about the substance — but not in Trump’s favor.
“I would therefore grant the motion to file the bill of complaint but would not grant other relief,” Alito wrote, “and I express no view on any other issue.”
They key words there are “would not grant other relief.” The lawsuit was seeking an injunction to bar four closely decided states — Georgia, Michigan, Pennsylvania and Wisconsin — from selecting their presidential electors ahead of Monday’s vote by the electoral college. Not even Alito and Thomas would grant that. Legal experts argued this essentially meant they would have dismissed the case as well — just that they didn’t believe the court could decline to accept it in the first place.
In essence, there is no indication any of the justices would have granted the relief. You can’t call it a unanimous decision because there is no vote count, but that’s hugely significant.
But while that argument misunderstands (however deliberately) how the Supreme Court works, the first one — that there was some merit to the suit even though it wasn’t considered — might be more insidious. Given the Supreme Court decided not to consider the case, Trump’s allies are suggesting, it means the claims therein haven’t actually been evaluated. So even when Joe Biden is elected, they’ll argue, it’ll only be because of some kind of technicality.
This is bogus. While Paxon’s lawsuit advanced an extremely novel legal theory in seeking to overturn the election results — and even seemed to throw in the towel at actually proving fraud — it recycled claims from many cases that came before it. And those specific claims have been roundly rejected by courts across the country, at both the federal and state level.
For one, it alleged that states illegally expanded their mail-in-voting. But lower courts, including the Pennsylvania state Supreme Court and judges appointed by Trump, have repeatedly upheld the changes. Secondly, it alleged malfeasance in the vote-counting process, including the idea that GOP observers were not given sufficient access and even alluding to the idea that Dominion voting machines might have changed votes. But many of these allegations have also been rebuked by the courts as being speculative and without merit.
Indeed, in dozens of decisions, not a single court has found merit in the claims of voter fraud. (The Trump effort got a favorable ruling in one case, but only on a procedural matter.)
The argument of Trump and his supporters moving forward is going to be that, without a Supreme Court ruling on the merits, we’ll never truly know whether Biden’s win was legitimate. Trump will use this to claim he never truly lost, which certainly plays into his post-presidency plans.
But that ignores how our legal system works.
Alito’s and Thomas’s views on original jurisdiction notwithstanding, you are not entitled to have the nation’s highest court hear your case just because of the huge stakes — and that goes double when the claims in your suit have been roundly rejected by lower courts.
If the Trump team had any success in the lower courts, they could perhaps cry foul that the Supreme Court never definitively weighed in. But their baseless claims and terrible record in court means this is a settled issue.
And indeed, even the two justices that Trump and his supporters are holding up as the defiant defenders of their day in the Supreme Court, Alito and Thomas, essentially acknowledged that.