The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The embattled Texas attorney general Ken Paxton, an elected Republican, recently filed suit in the Supreme Court seeking an injunction against the seating of Democratic presidential electors in four states and a remand to the Republican-controlled state legislatures to name a new slate of presidential electors. Although the suit has no chance of success, relies on highly dubious claims, and seeks an extraordinary remedy that would have the effect of overturning the results of a presidential election, it has attracted a great deal of attention. (Full disclosure: I have joined an amicus brief in opposition to the Texas suit.)
I am not concerned, except tangentially, with the merits of the suit here. What I want to note is the extent to which high-level Republican politicians have gone all in on this suit. Most of the (very unsuccessful) litigation surrounding the presidential election has been brought by the Trump campaign and relied on the services of marginal legal figures. The Texas suit is different. It has, of course, been endorsed by the Trump campaign. But more notably, Republican politicians have felt the need to weigh in on this one as they have not with the other suits. A large number of Republican attorneys general urged the Court to accept the suit. A somewhat smaller number endorsed the merits of the arguments. A majority of the Republican caucus in the U.S. House of Representatives have filed an amicus brief supporting Texas. Meanwhile, Republican senators and other state officials have had to publicly distance themselves from the suit.
We are no longer in the "the president has the right to pursue his legal remedies" phase of the process. We are now in the "the Republican Party is now tying itself to Donald Trump's quixotic quest to overturn the certified election results" phase. This is a disturbing development and a further sign that the Republican Party will not soon return to its traditional principles but will remain deeply influenced by Trump's particular populist style of politics.
The Texas suit has become an opportunity for Republican politicians to signal to their voters where they stand. In my book, Political Foundations of Judicial Supremacy, I show that this dynamic is part of how the Supreme Court has developed into its modern form as a powerful political institution enjoying an aura of judicial supremacy that encourages other political actors to defer to its declarations. Lawsuits allow politicians to engage in what the congressional scholar David Mayhew called "position taking," acting in public to align themselves with positions favored by their voters even when their actions have no policy consequences. Voters reward politicians for agreeing with them even when politicians are unable to deliver any tangible benefits. As is said about Donald Trump, the base loves the fact that "he fights," even if those fights never result in any real victories.
The Court provides one mechanism by which politicians can grandstand and play to the crowds without having to actually take responsibility for their actions. The Clinton administration, for example, thought provisions of the Communications Decency Act were clearly unconstitutional, but with an election coming up and Congress moving toward passing the measure, the administration swallowed its doubts and enjoyed the benefit of trying to do something about smut. When the Court inevitably struck the measure down, the administration could get its favored constitutional result while continuing to tell voters that the president is fighting as hard as he can to clean up the Internet. The unelected judges can take the blame for doing the dirty work of protecting the Constitution from popular policies.
Amicus briefs filed to the Supreme Court are a perfect opportunity for political posturing and a pure form of cheap talk. The politicians filing such briefs do not have to take responsibility for doing anything themselves. They can simply signal to their voters that they are in agreement with them. The fact that this particular suit is doomed makes it an even better political opportunity because there is no danger that such a brief might actually be consequential. The unelected justices will do the dirty work of telling the president—and his supporters—that he lost. The politicians can go back to their constituents and tell them, "hey, I tried. I was out there fighting for him."
But even if all this is just political posturing, it is not inconsequential. It is, in fact, deeply disturbing. First, political leaders of one party are, in large numbers, 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. The president's efforts have gone far beyond the pursuit of ordinary remedies to close and contested elections. He has engaged in an unprecedented campaign to undermine faith in the American democratic system and has pursued every potential path to overturning a clear electoral defeat and install himself in a second term of office. If he were actually successful in doing so, the consequences for the future of American democracy would be dramatic. He has been tolerated in part because no responsible political leader thinks he could actually be successful in these efforts, but we have now moved well beyond mere tolerance.
This is no longer Trump being Trump. This is now significant components of the Republican Party lending their own reputations to the effort to undermine American constitutional democracy and providing political cover for acts that would once have seemed outlandish. They are moving the baseline of what we can expect in future elections, and the result will make American democracy less secure.
Second, we should take note of why elected Republicans feel the need to posture in this way. They are doing so because they believe it is a popular position among their constituents that the election was stolen, that Joe Biden's presidency would be illegitimate, and that citizens should act by any means necessary to keep Donald Trump in the White House. Although Americans generally express their preference for democracy, there is evidence that many Americans are surprisingly open to the subversion of democratic norms, values and institutions if doing so would favor their particular party. Moreover, voters with authoritarian preferences have particularly favored Donald Trump's candidacy and presidency. We have tended to count on political leaders not to cater to those impulses within the American electorate. Elected Republicans apparently see it as currently in their political self-interest precisely to cater to those non-democratic forces. In these briefs, they are primarily doing so with cheap talk. The danger is that they do so with more concrete policy action as well.
This is a bad sign about where we are as a country, and where the GOP is as a party. Soon Donald Trump will vacate the White House and his elected successor will occupy the office of the presidency, but the lengths that some Republicans were willing to go to prevent that outcome is discouraging and will have consequences long after the inauguration.