Donald Trump has made it clear that he will not accept the results of the presidential election if he loses. As in 2020, he will declare victory on Election Day regardless of the results. And then all the MAGA forces at his command will go into overdrive to prevent any outcome other than a Trump victory, regardless of whether he actually won the election.
The courts are a key part of their strategy. In late September, the New York Times reported that Republican groups had already filed nearly 90 lawsuits challenging voting rules and possibly setting the stage for post-election court fights.
When Trump tried this in 2020, the courts – including the Supreme Court – did what they were supposed to do: They rejected meritless claims designed to override our votes. They protected our democracy and our freedom.
But will the Court’s MAGA majority stand with the people a second time? We can’t simply assume they will. We will be watching to see that they do.
Democratic norms have frayed since 2020
Democratic norms are frailer than they were four years ago. Threats of violence against elected officials, election workers, and ideological opponents are much more widespread than in 2020. Autocratic rulers like Russia’s Putin and Hungary’s Orban are held up by America’s right wing as models to emulate. Two major newspapers – the Los Angeles Times and the Washington Post – infamously opted not to make presidential endorsements this year, decisions widely interpreted as based on their wealthy owners’ fear of government retaliation should Trump take the reins of power.
The environment has changed around the country.
Unfortunately, the Supreme Court has not been immune from the degrading environment. MAGA justices have gotten away with grossly unethical conduct to advance their political goals without being held accountable. Perhaps most infamously, Samuel Alito and Clarence Thomas both participated in cases involving the 2021 insurrection – even though Thomas’s wife had urged Trump officials not to recognize his election loss, and Alito or his wife had flown pro-insurrection banners outside their homes.
Such brazen misconduct without accountability gives Americans reasons for concern: Is there a five-justice majority who won’t betray their constitutional oaths – and the American people – to engineer an unearned victory for Donald Trump?
The MAGA justices’ rap sheet
Unfortunately, the far-right justices- who were all nominated by Republican presidents – have a history of putting party over principle. Below are some of the key cases where they chose to bend the law and distort the constitution in order to significantly advance the interests of the Republican Party.
Turning Trump into a king
In Trump v. United States, the MAGA majority made it much harder to hold Donald Trump accountable for his attempted coup. The far-right justices decreed that presidents and former presidents can’t be prosecuted for most conduct they commit while in office. They even gave presumptive immunity for ordering the military to assassinate a political rival. The Republican justices protected their party’s nominee from timely accountability, making his election more likely. And they handed him the tools to abuse his power should he take office in 2025.
Cutting the heart out of the Voting Rights Act
In 2013’s Shelby County v. Holder, a 5-4 majority sabotaged the greatest civil rights legislation in American history. Since 1964, the Voting Rights Act had required states and counties with a history of racial discrimination to get clearance for changes in voting and election laws before they could go into effect. In 2013, the far-right majority eviscerated this provision. Predictably, their fellow Republicans in state legislatures moved quickly to pass laws that make it harder for people of color to vote.
Gutting the Voting Rights Act even more
In 2021’s Brnovich v. Democratic National Committee, the 6-3 majority rewrote another key section of the VRA and made it much less effective. The 6-3 MAGA majority did more than just uphold schemes by Arizona Republicans that made it harder for Democratic-leaning groups to vote. They also took it upon themselves to announce “guideposts” for future cases that in essence rewrote the law. Once more, they empowered voter suppression forces to make it harder for voters to make their voices heard.
Allowing partisan gerrymanders
In 2019’s Rucho v. Common Cause, the 5-4 majority opened the door to unlimited partisan gerrymanders. Modern gerrymanders are more efficient than ever and make it much harder to vote politicians out of office. The MAGA justices gave lip service to the idea that partisan gerrymanders are not compatible with democratic principles. Nevertheless, they ruled that courts may not even consider lawsuits claiming that a partisan gerrymander violates the U.S. Constitution. Republicans were the prime beneficiaries of partisan gerrymandering after the 2010 census, so the decision greatly benefited their party. We are living in a weakened democracy as a result. For instance, in this year’s congressional elections, the Brennan Center estimates that skewed maps will give Republicans significant advantages in 16 more House races than would have been the case with fair maps.
Decisions like these were made possible because every Republican-nominated justice on the Court at the time chose partisan interests over the health of our democracy.
Going forward
We don’t know what the results of the election will be. Nor do we know exactly what specific legal challenges Trump will make if he does not earn a clear victory Election Night.
But we do know the MAGA justices could decide the election. They have given us reason to mistrust them. Not surprisingly, a Pew Research poll shows that a majority of voters are not confident that the Supreme Court would be politically neutral in decisions about the 2024 election.
Not since 1860 has freedom been so directly at stake in a presidential election. Our expectation must be no less than this: All nine justices must put country over politics.