Nonlegal factors that SCOTUS justices might have to consider in deliberating Texas's lawsuit
A lot of people were shocked when the Supreme Court agreed to hear the lawsuit by the State of Texas against Georgia, Michigan, Wisconsin, and Pennsylvania for allegedly exploiting "the COVID-19 pandemic to justify ignoring federal and state election laws and unlawfully enacting last-minute changes, thus skewing the results of the 2020 General Election." According to media reports, Louisiana and Alabama A.G.s, and possibly six other states, have expressed interest in joining Texas in the lawsuit.
Many legal scholars dismiss the chances of success for the lawsuit, and even sympathetic observers such as John Hinderaker of Powerline term the suit a "Hail Mary" move, even though it is "plausible from a legal standpoint," because "the likelihood that the Supreme Court will seriously entertain the idea of overturning the apparent result of the election is far-fetched."
I am not a lawyer and will leave to others far more qualified than I to debate the intricacies of constitutional jurisprudence. My concern here is the other factors that may well weigh on the minds of the nine justices of the Supreme Court.
It's been more than a century since the words "[t]he Supreme Court follows the election returns" entered the nation's consciousness, meaning that it is naïve to believe that the Court acts solely on the basis of legal reasoning and precedent. I am looking at the case from the standpoint of the Supreme Court as a political body, one that cloaks its actions in the veneer of legal reasoning but that ultimately is well aware of the political background and consequences of its actions.
The first contextual factor that must be weighing on the minds of the nine justices is expressed in a question asked by Clarice Feldman: "Do you think the Democrats regret talking about packing the Supreme Court?"
I don't see how the justices can avoid being influenced by the prospect that should the vote count certified in Georgia early next month send Rev. Raphael Warnock and Jon Ossoff to the Senate, court-packing will be on the table should Joseph Biden be named president. Purely from the point of view of personal power and influence, it is better to be one of nine than one of thirteen, fifteen, or seventeen.
Moreover, the institutional standing of the Supreme Court would inevitably be diminished by court-packing. The Court's size would then become a political football, and the next time Republicans control Congress and the presidency (if that ever happens again), further expansion of the Court would be likely. Chief Justice Roberts, who so conspicuously has denied the truth that the Court is influenced by politics, absurdly maintaining that there are no Democrat justices or Republican justices, would be on the receiving end of a lesson if several new Democrat justices crowd needed office space in the Supreme Court building and crowd onto the bench where the nine justices sit when hearing oral arguments.
Photo credit: Joe Ravi CC-BY-SA 3.0 license.
Then there is the matter of civil unrest. On the one hand, the anger that might accompany a negative decision that hands the presidency to Biden in the face of obvious fraud surely weighs against handing victory to Texas. But on the other hand, the justices must ponder the reaction of the other side, the supporters of Trump and of fully exposing such fraud as took place. Antifa and BLM have demonstrated their willingness to burn down large swaths of cities. So far, the so-called deplorables have not yet been moved to violence, but they are reputed to be well armed, and, if they are convinced that the political and judicial systems of the United States have cheated them, there is no telling how far their revulsion will take them. The negative stereotypes that urban liberals carry with them about rural and working-class Americans may well suggest to the liberal members of the Court that there is something to fear.
Of course, all the justices know that the media will support a negative decision on the Texas lawsuit. They can expect to be vilified if they grant Texas the relief for which it asks. But if they ratify an obviously fraudulent election and facilitate the far-reaching change to the Republic as founded promised by many Democrats, there is the Verdict of History to ponder.
None of this is to suggest that scholarly legal arguments are irrelevant. But they will be weighed in light of the sort of practical social and political realities that are such an enormous part of today's America.