As the free world girds its loins for a new leader, it is unclear whether the next US President will be elected by a democratic vote or by the six Supreme Court judges unfailingly loyal to the Republican party. Both candidates are “lawyered up” with hundreds of professional advocates on each side to challenge the ballots – Republicans have already brought 130 court actions about electoral arrangements. Before the result is certified by the President of the Senate next January, it may depend on a decision (predictably, 6–3) by the politically divided Supreme Court.
The politicisation of the American judiciary is usually traced to the case of Bush v Gore in 2000. The vote in Florida was too close to call – George W. Bush was a few hundred ahead on the voting machine totals, but there were demonstrable irregularities that discounted votes for Al Gore. The state Supreme Court, sensibly and fairly, ordered a manual recount, but five judges appointed by Republican presidents and contrary to precedent against meddling in state court decisions about state electoral law, found pettifogging reasons for ruling that it was too late for a recount. It awarded the presidency to Mr Bush, and although Mr Gore said he disagreed – as did most constitutional scholars – but unlike Donald Trump whenever he loses, he accepted the result.
This case is usually regarded as an example of party lines jurisprudence. But this is not quite correct: among the four dissenters was a Ronald Reagan appointee, David Souter. He derided the majority opinion and upheld the order for a manual recount. He displayed integrity – a quality that should be required of all who hold judicial office. It is sought in Britain by having an independent Judicial Appointments Commission that does not enquire into the political allegiance of candidates, unless they are overt. But under the personal appointment power of an American President, they are determinative. So much so that the media, in reporting court cases with political ramifications, now routinely identifies the identity of the president who appointed the judge.
In his previous term, Trump was able to appoint 220 federal judges (three to the Supreme Court), as advised by the Federalist Society, right-wing lawyers who nominate judges of similar bent. A few were so intellectually challenged that the American Bar Association deemed them unqualified, but they were appointed nonetheless. The judge who stopped Trump’s “slam-dunk” prosecution for hoarding classified documents at Mar-a-Largo, on the astonishing ground that the special counsel who brought it was illegally appointed, was herself a Trump appointee. The case is on appeal, thus preventing any conviction before the election.
The current Supreme Court is locked into its 6–3 Conservative majority. Its judges have no retiring age. Two of them were in Bush v Gore in 2000 – John Roberts, the chief justice, who sometimes hands down conciliatory judgments but not on big issues, and Clarence Thomas, the most reactionary of all. He would not be confirmed today, although in 1991 the evidence (from Professor Anita Hill and others) of abusive sexual conduct was brushed aside. His wife is a zealot for Trump, implicated in the attempt to overturn the 2020 result.
In 2006 came the stolid Republican Samuel Alito, author of the opinion that overturned Roe v Wade. Then came the three Trump appointees: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
Democrats have no answer to this unfair legal hurdle – at least for the foreseeable future. They talk of introducing an 18-year term limit on the justices, which would free up three places, but this would take a majority in both houses of Congress. They complain that the present court lacks intellectual distinction, but this does not much matter because every justice has a cadre of highly qualified clerks to draft their opinions. The real concern is judicial integrity: whether any of “the six” (and it will take two of them) can summon up the independence demonstrated by David Souter in Bush v Gore.
Recent decisions suggest not. They fulfilled Trump’s promise to his religious base by reversing Roe v Wade, notwithstanding that it had stood as law for half a century. They handed the National Rifle Association a 6-3 victory by striking down a reasonable and sensible New York law requiring purchasers of guns for use outside their house to provide evidence that they were needed for use outside the house. This was declared unconstitutional, because in the warped opinion of The Six, the right to carry guns and to shoot them anywhere at any time prevailed over public safety.
Worst of all came last June’s decision that Trump and any future president could not be prosecuted for crimes committed in office. No longer can it be said of the US, as of Britain since the trial of Charles I, that “no matter how high you are, the law is above you”. In Trump v US, an appeal against the special prosecutor’s indictment of Trump for his criminal attempts to overturn the election result by bullying and threatening officials (the Attorney General, the Vice-President, and the election offices of Georgia and Alabama) – the court decided that Trump had “absolute immunity” from prosecution for crimes committed in the exercise of “core” presidential duties. These include appointing judges and granting pardons, for which he might now accept lavish bribes.
The court said that Trump must be presumed innocent of any other crimes committed as president unless he acts solely in a private capacity. So if Trump kills a White House gardener in a fit of rage, he might be indicted, but not if he arranges for the CIA or FBI to have the gardener arrested and imprisoned. So Trump and future presidents are, for the first time in American history, above the law.
What is likely to happen next week? Trump has not made his previous mistake of retaining bad lawyers – bad because they were incompetent (60 of their 61 motions were thrown out) as well as morally decayed (so far, no fewer than 14 of them have been convicted, indicted or disbarred for filings that they knew to be false). His new lawyers are at least reputable, and Trump has hinted at “a little secret” plan cooked up with the leader of Congress.
My guess is that it will be a challenge to the certification of the election next January by the President of the Senate. This should be an automatic process – Mike Pence refused Trump’s demands in 2020. But this time, the President of the Senate is Democratic nominee Kamala Harris.
Trump lawyers may go to the Supreme court with the claim that she cannot certify herself. It will take two of The Six to behave like David Souter, because this otherwise solid bloc is predisposed to take Republican arguments seriously.
A few days ago, as if in rehearsal for the next case, they decided to resurrect a decision by the Republican governor of Virginia to intrusively vet ballots from overseas. This had been struck down by a federal judge by 6-3 and without argument, but the Republican majority reinstated the order just in time for the election.
If Trump clearly wins, Vice-President Harris, like Mr Gore, will concede defeat. Trump, a most vindictive man, will reoccupy the Oval Office, but this time as the first president in American history who can commit crimes with impunity.
He has claimed to have many enemies whom he has threatened to prosecute, and his vengeance cannot be deterred by the threat of indictment. America, as famously self-styled a government of laws, not men, will be governed by an untouchable.
Geoffrey Robertson KC is author of Crimes Against Humanity: The Struggle For Global Justice (5th edition is published by Penguin this month)