Expect Supreme Court Intervention This Election
On November 5th, Americans will cast their ballots in the general election. While we will not know the exact results of the presidential election that night, the possibility of a legal contest to this election is as high as it has ever been, and workers of this country should be prepared for this possibility.
Since the last election, Americans have had to contend with the reality, once largely concealed and now openly revealed, that the capitalist institutions that supposedly represent them can be subverted. The insurrection that attempted to overturn the election on January 6th, 2021, was preceded by a long series of legal battles pertaining to vote counts and the slates of electors — all of which were eventually thrown out of court. The goal was to create alternate slates of electors (electors are the people who cast the vote for the President, not the people themselves) to be submitted to Congress for certification. If enough fake, alternate slates were sent then Trump could pressure his then Vice President Mike Pence and the rest of Congress to certify himself as the President. While Donald Trump’s plot was foiled in the end, with Joe Biden assuming the presidency after being certified as the electoral college winner, what was at one point inconceivable is now a commonly understood reality to every American.
But Donald Trump is not the current President, and therefore cannot rely on the institutions of the executive office, bureaucratic momentum, and executive prestige to pull off another subversion in the same way as last time. He cannot use the Presidency to bully officials into going along with the same scheme of last election. So, how could election subversion take place this time?
The most obvious way will not be by force, as Democrats control the institutions of the executive (the Military, FBI, Capitol Police, etc.) and would win such a confrontation if it came down to it. Although force might be used on the local level to place fake ballots, destroy ballots (this is already happening), or silence whistleblowers, legal means could be more than enough to hand Trump a victory from the jaws of defeat without a shot ever being fired.
The election of 2000 is a notable example that proves this. In that election, after the chaotic right-wing “Brooks Brothers riot” which sought to stop the recount of the presidential election in Florida, the Supreme Court intervened to hand Republican George W. Bush the election against the Democrat Al Gore. While the Supreme Court is supposedly “apolitical,” anyone with any political consciousness will be able to see that the conservative majority on the court intervened to hand the presidency to someone ideologically aligned with them. Despite whatever differences they have in the “interpretation of the law” they were politically disciplined when it mattered. Since what they did was legal, as the word of the Supreme Court is final, the Democrats rolled over and allowed it.
The Supreme Court today is even more ravenously conservative than back then. With the most justices, conservatives occupy six seats with three being appointed by George W. Bush (John Roberts, Clarence Thomas, and Samuel Alito) and the other three (Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) being appointed by Trump. The other three justices are all “liberal” justices, with two being appointed under Obama (Sonia Sotomayor and Elena Kagan) and one under Biden (Ketanji Brown Jackson).
These conservative justices have been under scrutiny over the past few years. These justices are not in any sense of the word “apolitical,” both in the sense that they have preferences in the American “Conservative-Liberal” political spectrum and in the sense that there is no such thing as an “apolitical” bourgeois state actor. They are certainly not austere adjudicators without corruptible sensibilities like we have all been taught in school. Justice Clarence Thompson has taken millions of dollars in bribes and fought to hide his ties to billionaires like Harlan Crow, Justice Samuel Alito flew the January 6th insurrection flag as well as the Christo-fascist “An Appeal To Heaven” flag on his front lawn, and Justice Amy Coney Barrett was a “handmaiden” in a far-right Catholic organization. All the conservative justices voted to eliminate abortion rights given by Roe v. Wade in the Dobbs v. Jackson decision, and even recently ruled that Presidents have presumed immunity from lawsuits in Trump v. United States — a ruling that cements the power of the Presidency to never-before-seen heights, and retroactively vindicates Richard Nixon’s actions in the Watergate scandal. Justice really is a fickle thing in the hands of the supreme farce that is the Supreme Court!
This is not to let the “liberal” justices off the hook. They too are obviously political, vote in the interests of the more “liberal” bourgeoisie, and often vote with the conservatives on the court too. But since they are in the minority, their actions will likely be inconsequential should anything be placed before the court this election. Therefore, the primary focus is what the six conservative justices are likely to do.
How would a lawsuit to throw out a result and hand the election to Trump be structured? In 2020 the Trump-backed lawsuits were thrown out by courts largely because the votes were already counted, showed a wide enough margin in favor of Biden, and there was minimal or non-existent evidence of voter fraud. Whenever there is already a count of the votes it is harder to argue against the result, and it would have been even more unsightly for the Supreme Court to disregard the results altogether. An easier way is to raise objections before the vote is fully complete, or during a recount. This is exactly what happened in 2000, and many state and local officials in each of the swing states are more than willing to put their livelihoods on the line to secure a win as we saw in both 2000 and 2020.1 In short, Trump needs to find some way to get something, anything, before the Supreme Court. The Supreme Court can take it from there, inventing a new insane never-before-seen legal standard that will be taught to law students as the inspired word of God.
There are already lawsuits over the election in courts right now. According to the New York Times, with data from the liberal law advocacy group Democracy Docket, over 187 election-related suits have already been filed, with at least 116 seeking some restrictions to voting and with 68 filed by those seeking to expand or protect voting.2 While there are 115 cases still open, we are not including the lawsuits that will soon be filed up to the last minute of the election, and a flood that will follow after the election.3 While the Electoral Count Reform and Presidential Transition Improvement Act of 2022 which amended the Electoral Count Act of 1887 has codified the process of certifying the election, it is new legislation that is untested by the Supreme Court and one would be wise to not take its existence as a sufficient buttress to Supreme Court intervention.
If a dispute is taken to the Supreme Court for an intervention, it is impossible to conceive of any other outcome than a decision in Trump’s favor considering Trump appointed three of them and the rest of them are ideologically aligned with him. We know because of the 2000 election that justices are willing to exercise great discipline when the chips down. The other three liberal justices can dissent as hard as they want but they will be unable to change the outcome and will likely be unable to convince any two of the six conservative justices to break their way.
So, what does Harris need to minimize Supreme Court intervention? At minimum, a strong performance at the polls and ideally a blowout — and based on polling data the latter is unlikely. She needs a strong performance not only in the minimum swing states she needs to win, the “Blue Wall” of Michigan, Wisconsin, Pennsylvania, and Nebraska’s 2nd district, and ideally across the board. If she wins with good margins in all but one, then that one can be challenged. If she wins with small margins, even in all three states, the possibility of the Supreme Court overturning even all three is not zero. If she wins with great margins in the “Blue Wall,” then it will be difficult to challenge. In an even better scenario for Harris, if she wins all three states, Nebraska’s 2nd district, plus one or two “sunbelt” states like Georgia, North Carolina, Arizona, Nevada, then with each marginal win it will become more difficult, but again not impossible, to throw her victory out. While the accuracy of polling data is yet to be seen and there is a possibility it is inaccurate, the consensus right now is that a blowout or even a strong performance by Harris is not likely.
Everything presented in this article assumes a close or contested election for Harris. If Trump wins by healthy or even close margins the certification of his presidency is all but assured as there is no way that the Supreme Court would intervene on Harris’s behalf given the conservative majority of six justices. In short, if it is close, expect the Supreme Court, not the people voting, to decide this election.
The purpose of this article is to educate workers that things like this, overturning a “democratic” election (something that we are all taught “doesn’t happen here”), is indeed a possibility. The de-sacralization of America’s political system, which is to say, the education of the working class that the political systems of this country are not made for them, but to suppress them, to dominate them, to control them, cannot be stopped. With every election, workers slowly but surely learn through experience that the school-house version of American politics, and indeed all bourgeois politics, is false. This consciousness can advance or retreat in each election cycle, but overall, its advance cannot be stopped. The New Worker strives to further this education by covering elections and electoral politics, illuminating even the darkest corners of Washington D.C. with the light of Marxism-Leninism. Those who want truly free and fair elections without capitalist interference should support the establishment of Socialism-Communism, and the Communist Workers Platform.
Footnotes
[1] Mead Gruver, “Former Colorado county clerk Tina Peters sentenced to 9 years for voting data scheme,” AP News, October 4th, 2024, https://apnews.com/article/tina-peters-colorado-clerk-election-vote-fraud-b456ce4f80dc97f4b967eb6297311a51
[2] Nick Corasaniti, “Could the Vote Be Contested Again? 5 Threats to a Smooth Election,” The New York Times, October 29th, 2024, https://www.nytimes.com/2024/10/29/us/elections/election-results-worries.html
[3] Corasaniti, “Could the Vote Be Contested Again?”