Lifetime Tenure Meant Even Trump’s Supreme Court Picks Could Resist His PressureRoundup
tags: Supreme Court, Donald Trump, 2020 Election, judiciary
Teri Kanefield is an author and a graduate of the University of California Berkeley School of Law. For 12 years, she maintained an appellate law practice in California.
Friday night’s Supreme Court decision to put an abrupt end to the bizarre Texas lawsuit that sought to overturn the results of this year’s presidential election illustrates the wisdom of giving justices a lifetime appointment — or, at the very least, an appointment so long that the members of the court are unafraid to incur the wrath of a vindictive president who would be king.
The issue at hand was an original jurisdiction action filed by Texas Attorney General Ken Paxton, in which Paxton — on behalf of Texas — asked the Supreme Court to overturn the elections in Pennsylvania, Wisconsin, Georgia and Michigan, arguing that state officials there departed from the rules set down by their state legislatures, violating the Constitution, which gives legislatures the power to determine how presidential elections are run in their states. But the remedy Texas sought was extraordinary. And though President Trump has been falsely claiming massive fraud led to President-elect Joe Biden’s win, the lawsuit didn’t allege any. The arguments offered were mere pretext for the Supreme Court to overturn the will of the voters because the voters chose not to reelect Trump.
Before the lawsuit was filed, Trump pressured elected Republicans to help him overturn Biden’s win. Those who refused — like Georgia Gov. Brian Kemp and Secretary of State Brad Raffensperger — faced Trump’s ire. Trump commands a great deal of loyalty among the Republican base. Therefore, in the words of one GOP official, Republicans who cross Trump “may have some difficulty if they want to seek elective office within the Republican Party.”
After the lawsuit was filed, Trump turned it into something of a loyalty test. Republicans across the nation felt compelled to side with him. A majority of House Republicans — 126 members — said they were backing the Texas lawsuit. The Republican attorneys general of 17 states threw their support behind the Texas lawsuit. A group of Pennsylvania legislators threw in their support, including the state Senate majority leader. Then a group of Georgia legislators backed the lawsuit. As an illustration of how much pressure was brought to bear on these Republicans, the Pennsylvania state Senate leader said that failure to back up Trump’s claims “would get my house bombed.”
To be clear: The Pennsylvania and Georgia legislators were backing a Texas lawsuit to overturn the elections in their own states. And the House Republicans were the same ones who argued during the impeachment hearing that removing a president before an election was inappropriate: The people must decide. Now that the people decided, and Republicans don’t like the result, they want to overturn the election. And “overturn” is the correct word. In fact, it’s the word Trump himself used.
Almost the entire weight of a major political party was thrown behind the Texas lawsuit — the party that a clear majority of the Supreme Court’s nine justices align with. Ordinarily, that would be hard to resist.
But one of Alexander Hamilton’s better ideas was that federal judges must be given lifetime terms to create a politically insulated judiciary. In Federalist 78, Hamilton explained that there can be no liberty “if the power of judging be not separated from the legislative and executive powers,” and that the “complete independence of the courts of justice is peculiarly essential in a limited Constitution.”
Friday night’s ruling underscored that wisdom.
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