Ted Cruz will not get a chance to argue that the Supreme Court should stop Joe Biden from taking office by overriding the presidential election results in four battleground states. But the Texas senator's eagerness to do so speaks volumes about the extent to which the Republican Party has abandoned the principles it once claimed to defend, instead organizing itself around the whims of a president who stands for nothing but his own personal interests.
Donald Trump personally asked Cruz, who graduated magna cum laude from Harvard Law School in 1995 and argued nine cases before the Supreme Court as the solicitor general of Texas, to represent the state if the justices agreed to hear Texas Attorney General Ken Paxton's last-ditch lawsuit challenging election procedures in Pennsylvania, Georgia, Michigan, and Wisconsin. The senator agreed, his spokesman told The Texas Tribune. Cruz had earlier said he stood ready to argue another pro-Trump lawsuit, in which Rep. Mike Kelly (R–Pa.) maintained that Pennsylvania's election results should be set aside because the state legislature had violated the Constitution by expanding absentee voting.
Both of those lawsuits, which relied on seemingly contradictory legal theories, were unanimously rejected by a Supreme Court that includes six Republican appointees, half of them nominated by Trump himself. Last week the justices declined to take up the Pennsylvania case in a one-sentence order that was issued without a recorded dissent. On Friday, the Court turned away Paxton's lawsuit. Seven justices said Texas "has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections."
Two justices, Samuel Alito and Clarence Thomas, thought the Court was obliged to let Paxton file his bill of complaint under its original jurisdiction in cases involving interstate disputes. But they added that they "would not grant other relief." The upshot, as Damon Root notes, was that "Texas and Trump lost 9–0."
Despite Trump's avowed belief that the Court would intervene to give him a second term, the justices were uniformly unimpressed by the legal arguments for doing so, which was hardly surprising. Kelly's lawsuit was based on the premise that Pennsylvania legislators, who according to Paxton have "exclusive and plenary authority" to decide how presidential electors are selected, did not have the authority to loosen restrictions on voting by mail. Paxton's lawsuit was widely derided by legal scholars as an ill-conceived, poorly reasoned, and unprecedented attempt to reverse the outcome of a presidential election by asserting that one state has standing to sue others when it disapproves of their election rules.
Election law expert Rick Hasen called Paxton's case "a press release masquerading as a lawsuit." A brief from conservative legal scholars and Republican politicians condemned it as "a mockery of federalism and separation of powers." Case Western Reserve law professor Jonathan Adler warned that Paxton was pushing "a radical argument that would make a mockery of Article II's delegation of power to state legislatures and upend core elements of our federal system." Princeton political scientist Keith Whittington worried that Republican officials who backed the lawsuit were "rushing to throw over constitutional and democratic principles in an effort to curry favor with a president who refuses to accept the reality of an electoral loss."
Christopher Carr, Georgia's Republican attorney general, noted that Paxton was asking the Court to "transfer Georgia's electoral powers to the federal judiciary," adding that "respect for federalism and the constitutional design prohibits that transfer of power." Another Republican attorney general, Ohio's Dave Yost, warned that "the relief that Texas seeks would undermine a foundational premise of our federalist system: the idea that the States are sovereigns, free to govern themselves."
Despite those obvious dangers, 17 other Republican attorneys general, and more than 100 Republican members of Congress joined Trump in backing Paxton's lawsuit. But Cruz's eagerness to jump on this batty bandwagon is especially striking because of his legal background, his pose as a diehard defender of the Constitution, and his personal history with Trump.
"This suit that was filed by my colleague from Texas is uniquely unserious," Josh Shapiro, Pennsylvania's Democratic attorney general, told CNN's Chris Cuomo last week. "It is based on bizarro conspiracy theories. It is based on issues that have been litigated and dismissed." When Cuomo asked about Cruz, "who is supposedly a legal genius," Shapiro replied, "He has proven himself to be neither a genius in the law [nor] a genius, frankly, in terms of an EQ. He is a sad sack."
Shapiro may have meant to question Cruz's intelligence rather than his interpersonal and communication skills. Either way, he went too easy on Cruz, who surely is smart enough and legally knowledgeable enough to recognize the weakness of Paxton's claims. Yet Cruz was champing at the bit to take on a case that his state's current solicitor general, Kyle Hawkins, did not want to touch with a 10-foot pole.
Last week, Cruz's fellow Texas senator, Republican John Cornyn, told reporters he was "skeptical" of the lawsuit's prospects and called its implications "frightening." But Cornyn offered praise for Cruz's legal acumen and skills. "I can't think of a better advocate than Senator Cruz," he said. "As you know, he's got great experience arguing cases before the Supreme Court of the United States as a former solicitor general of Texas. And that's just on top of his private-sector career after he clerked for William Rehnquist on the Supreme Court." Cruz's "great experience" makes his support for the lawsuit all the more troubling.
Cruz's current role as a Trump toady stands in sharp contrast with his criticism of Trump in 2016. After Trump claimed that Cruz, who was then vying with him for the Republican presidential nomination, "stole" the Iowa caucus through "fraud," Cruz dismissed that fact-free accusation as "yet another #Trumpertantrum." Yet here he is lending credence to the even wilder, equally unsubstantiated claims of election fraud that Trump has been pushing for more than a month.
After Trump, who had dubbed Cruz "Lyin' Ted," implicated the senator's father in John F. Kennedy's assassination (yes, that really happened), Cruz was notably angrier. "I'm going to do something I haven't done for the entire campaign," he said in May 2016. "I'm going to tell you what I really think of Donald Trump. This man is a pathological liar. He doesn't know the difference between truth and lies. He lies, practically every word that comes out of his mouth. And in a pattern that I think is straight out of a psychology textbook, his response is to accuse everybody else of lying….Whatever he does, he accuses everybody else of doing. The man cannot tell the truth, but he combines it with being a narcissist—a narcissist at a level I don't think this country has ever seen…..Everything in Donald's world is about Donald….The man is utterly amoral. Morality does not exist for him….Donald is a bully….Donald is cynically exploiting that anger [at the political establishment], and he is lying to his supporters. Donald will betray his supporters on every issue."
At the Republican National Convention that July, Cruz elicited boos by conspicuously declining to endorse the party's nominee, instead telling Americans to "vote your conscience, vote for candidates up and down the ticket who you trust to defend our freedom and to be faithful to the Constitution." Cruz did not publicly say he would vote for Trump until late September, when he reluctantly endorsed him as the lesser of two evils.
By his own account, Cruz is now committed to defending an amoral, narcissistic, unprincipled, utterly dishonest bully, even when that means reinforcing the fantasy that Trump won the election and backing constitutionally reckless efforts to override the actual result. Whatever credit the Cruz of 2016 deserved for telling the truth about Trump has dissolved in a bath of cowardly sycophancy drawn by a politician who is terrified of alienating the president's supporters.
Cruz, who is up for reelection in 2024 and may seek his party's presidential nomination that year, has a strong political interest in placating Trump fans. But if voters took to heart Cruz's advice about supporting candidates they trust to defend the Constitution, he would lose handily in either race.