Texas AG Asks the Supreme Court for a Coup

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Texas has filed an application to the Supreme Court to initiate a lawsuit against Pennsylvania, Michigan, Wisconsin and Georgia — four swing states that Joe Biden won in the presidential election. The lawsuit is a piece of theater, not a credible legal strategy.

The lawsuit exploits a quirk in the Constitution that allows a state to sue another state directly in the Supreme Court, without starting in the lower courts. That gives the justices an opportunity to weigh in, in the event that any of them chooses to do so.

It’s unlikely that the justices will say anything about this suit, allowing it to become moot once President-elect Biden is sworn in. And if any of the justices do issue a statement, it won’t change the election outcome. So on that level, there is nothing to worry about.

Nevertheless, the attempt reflects a deeper perception of the court — and that perception is worrisome. President Donald Trump has made it clear he would like the Supreme Court to somehow find a way to overturn the vote.

In Trump’s fantasy world, apparently shared by Texas attorney general Ken Paxton, the Supreme Court will engage in a constitutional coup d’état and give Trump a second term. This idea is based on a view of the court as entirely partisan. It’s disrespectful of the rule of law. And it’s wrong, whether held hopefully on the right or fearfully on the left.

You know a lawsuit isn’t serious when it opens with an epigraph — kind of like a novel might. The Texas application starts with a quotation from John Adams: “[T]hat form of government which is best contrived to secure an impartial and exact execution of the law, is the best of republics.”

This may sound like an obvious appeal to the rule of law, which Adams cared about a lot. But on closer analysis, it’s actually a weirdly appropriate choice. It comes from a 1776 letter by Adams known as his “thoughts on government.” In the letter, Adams attacks the idea of democracy — rule by the people. He argues for separation of powers and for a judiciary that can “mediate” between the popular legislature and the executive. If you were going to file a brief with the Supreme Court asking it to throw out the people’s choice for president, Adams’s letter might be just the ticket.

The problem, of course, is that while the rule of law is a wonderful thing, and the Constitution does create a tripartite system of government, the Supreme Court isn’t supposed to overthrow elections in the name of “balance” (to use another of Adams’s favorite words).

In fact, the invocation of Adams to ask the justices to overturn the will of the people kind of makes you want to quote Lin-Manuel Miranda paraphrasing Alexander Hamilton: “Sit down, John!” Or as James Madison wrote to Thomas Jefferson in 1788: “John Adams has made himself noxious to many particularly in the southern states by the political principles avowed in his book.”

If the elitist Adams didn’t care much for the people or their will, at least he had a complex and well-developed constitutional theory on which to rely. Not so Trump and his affiliates.

The Texas lawsuit is literally asking the court to disqualify the electors from the four swing states that went to Biden. That would plunge the country into a constitutional crisis. It would be the end of democracy in the United States. A majority of nine justices would have replaced 330 million citizens as our rulers.

It’s possible that the fantasy that the court would actually do this is rooted in a mistaken understanding of what happened in the Bush v. Gore case. Trump and the Texas lawyers seem to think that problematic case amounted to the Supreme Court giving the election to George W. Bush when Al Gore had in fact won.

The reality was more complicated. The justices back in the year 2000 stopped a recount that, at the time, was believed to have the possibility of giving the closely contested election to Gore. To be sure, that decision relied on a bizarre interpretation of the equal protection clause to say that differences in recount techniques violated the Constitution. But the whole problem that Bush v. Gore addressed was a situation in which it was genuinely unclear who had won the election. It came down to just a handful of votes. The result was, in effect, a coin toss — and the justices stopped the coin from being tossed, assuring that Bush won. I think that decision was blatantly wrong, but in any event, multiple subsequent recounts suggested that Bush would’ve won anyway.

Regardless of whether a mythic version of Bush v. Gore is to blame, it’s bad for the functioning of our democracy that elected officials like the Texas attorney general (to say nothing of Trump) think it is acceptable to go on the record asking the Supreme Court for a coup d’état.

The justices are sometimes ideological when it comes to jurisprudence. Some of them are sometimes partisan. Bush v. Gore had unfortunate partisan overtones. But the Supreme Court would not break democracy. Not even John Adams, the skeptic of popular self-rule, would have wanted that result.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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