No, the Court has proved over the years—and especially over the past year—that we can’t.
It is very possible that later this year the Supreme Court will be asked to rule in a case that could effectively decide who will be inaugurated as president in January 2025. In fact, that happened four years ago, when a petition by the State of Texas asked the Court to throw out the election results in four other states. That filing, to be sure, had many legal vulnerabilities, including the question of how Texas could have standing to challenge election results in other states. But in the Supreme Court, which has the power to change the law when it chooses to do so, an argument that some would call frivolous always has the potential to end up being accepted. Remember the example of Bush v. Gore. That ruling of the Court in December 2000 did effectively make George W. Bush the winner of the presidency, and many would say that the Court had to adopt some pretty indefensible positions to get there. Assuming that the margin of victory this year is close (as seems likely), we can expect that litigation may again arrive at the Supreme Court’s doorstep that would allow the Court to play a central role in determining who won the presidency.
If the Court is confronted with such a case, will it behave in a principled and democratic manner, enforcing the rules neutrally and allowing the chips to fall where they may? Put differently, will it buttress the basic principle of majority rule, or will it be guided instead by a preference for one side in our political wars? Given the Roberts Court’s record in politically significant election-law cases, and even more importantly given the Court’s most recent, stunning decision to give the president a vast new form of absolute criminal immunity, there is every reason to be fearful that the Court will put a political thumb on the scale if given half a chance. Democracy advocates need to keep that in mind as they prepare for whatever may happen in this year’s postelection period.
Before addressing the reasons why the Court has become suspect when it comes to upholding a democratic election outcome, it’s important to understand how and when the Court became a central participant in determinations about the true victor of presidential elections. It hasn’t always had that role.
In the horrific fight over who won the 1876 Hayes-Tilden election, the Court was not asked to rule on who won; instead, Congress created a commission (including some justices as members) to reach a resolution. As recently as 1960, when President Kennedy beat (later) President Nixon by the smallest of margins, and there were serious allegations of fraud putting Kennedy over the top, no litigation ensued. Certainly, the Constitution does not create an explicit role for the Court in resolving presidential election fights. It gives that task to Congress when it meets on Jan. 6 after the electors have voted.
The Court first seemed to claim a role in protecting democracy in the famous footnote 4 of its Carolene Products decision in 1938. That decision called for judicial deference to actions of elected leaders, but the footnote then recognized an exception when it comes to review of laws that undermine democracy itself. Of course, this was at a time when the Court had effectively refused to enforce the Constitution against the Jim Crow South and was also refusing to do anything about egregious violations of the principle of one-person one-vote in congressional and legislative district maps. For these reasons, among others, it took a while for the promise of footnote 4 to be kept.
But by the 1960s, the Warren Court was taking action to improve and protect American democracy. It famously entered what Justice Felix Frankfurter called the “political thicket” by deciding that unequally populated districts could be challenged under the 14th Amendment. Then it moved on quickly to invalidating onerous burdens on the right to vote, such as the poll tax. In the 1970s, the Burger Court intervened aggressively to invalidate large chunks of the law Congress crafted to regulate money in politics after Watergate. In the 1980s, the Court invalidated state laws that unduly burdened candidates’ access to the ballot, and it adopted a very broad reading of the Voting Rights Act—leading to a vast increase in the number of Black and Latino individuals elected to Congress and to the state legislatures. In the 1990s, the main emphasis was on limiting how states draw majority-minority districts, pushing back against excessively ugly districts. By 2000, the Court had reached its current central position in resolving election disputes, shutting down the recount process in Florida and effectively naming George W. Bush the winner in the presidential contest over Al Gore.
That the Court may have to weigh in on this year’s election was made even more likely by the way that Congress, in 2022, amended the Electoral Count Act in response to some of President Trump’s postelection maneuvering in 2020. A central goal of the new Electoral Count Reform Act was to make the joint session of Congress on Jan. 6 a non-event again. It does that in part by providing that only the governor of each state can certify the winning slate of electors. And it establishes a super-expedited Supreme Court review to ensure proper management of the vote counting process and that the governor certifies the legitimately elected slate before the Electoral College meets.
So, if we end up with another December Supreme Court ruling determining the outcome of the presidential election, it may be because Congress chose to trust the Court more than itself (for perfectly understandable reasons!) to resolve potentially decisive election disputes. But was that trust misplaced?
One place to look for an answer to that question is the Roberts Court’s handling of cases involving elections and voting rights. The Roberts Court’s record in that area is a mixed bag of activism and deference. But what is most troubling about that record is that the Court seems to have little interest in promoting democracy as a value. Indeed, it is almost as if the Court has been applying an inverted version of the principle set out in Carolene‘s footnote 4. The new Roberts Court rule seems to call for deference to elected branches of government only when they act to distort democracy.
In the Roberts era, when Congress has passed laws promoting democracy, the Court has been anything but deferential. For example, the Court created a new constitutional doctrine from whole cloth when it reached out to shoot down the all-important preclearance provision of the Voting Rights Act in the Shelby County case. And it was just as aggressive in Citizens United when it read the First Amendment as protecting the right of corporations to spend money to advocate the election or defeat of candidates.
These two decisions had the effect of, first, increasing the ability of states to impose disparate burdens on voters of color and, second, authorizing corporations to use their vast wealth to dominate the airwaves in the run-up to elections. That cannot be seen as activism in standing up for democracy.
By contrast, when has the Roberts Court been deferential? That came when the Court reviewed actions by our elected leaders that served to undermine democracy—for example, in barring all federal constitutional review of partisan gerrymanders, no matter how extreme, in the Rucho case.
Even worse, a search for a “principle” that explains this pattern of activism and deference suggests that political considerations are driving the Court’s decision-making. The Southern leaders freed from legal constraints in Shelby County were nearly all Republicans. At the same time, most of the gerrymanders left unredressed by Rucho were drawn to increase the number of Republicans elected to Congress and to the state legislatures. (As for Citizens United, the partisan skew, if any, caused by allowing corporations to make political expenditures and contributions is difficult to track, and the related emergence of a campaign finance system heavily dependent on Super PAC contributions by the super-wealthy has had decidedly bipartisan effects.)
But the Roberts Court’s election law cases, even if they are anti-democratic to a degree, have not extinguished our democracy. And until recently, there was good reason to think there were limits on how far the conservative majority of the justices would go to undermine democracy and to bring about the government they seem to prefer as a policy matter. Chief Justice John Roberts, in particular, was always seen as an “institutionalist” worried about the Court appearing too activist or partisan—and as someone who criticized Trump and was willing to reject his claims in court, stating, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.” Or recall how Roberts split with his fellow conservatives and refused to accept an obviously pretextual justification for the Trump administration’s cynical decision to ask a citizenship question on the decennial Census form.
Chief Justice Roberts also, to his credit, led the way in 2023 when the Court’s majority, somewhat unexpectedly, issued two redistricting decisions that protected American democracy rather than undermining it further. With the majority opinions authored by Roberts, the Court refused to nullify Section 2 of the Voting Rights Act in Allen v. Milligan and rejected the most extreme forms of the “independent state legislature” theory in Moore v. Harper.
The Court also rejected challenges to the 2020 presidential election results brought to it by lawyers for the Trump campaign. But as noted above, the Texas filing was frivolous in the extreme, and the other challenges would not have changed the outcome of the election.
Then came the Supreme Court term that just ended. The message from that term seems to be that the conservative majority of the Supreme Court, including the chief justice, have signed on to the project of helping former President Trump every way they can. Some would point to Trump v. Anderson, the case about whether Trump was disqualified from serving again under Section 3 of the 14th Amendment because of his instigation of an insurrection following the 2020 election. But the more telling decision was Trump v. United States, the immunity ruling on the last day of the term. In that case, Trump’s lawyers made a legal argument that nearly all observers thought was frivolous—that a president could intentionally use his immense power to subvert the Constitution and prevent the peaceful transfer of power and then claim absolute immunity from all criminal liability, at least for “official acts” that were part of that unconstitutional effort.
To be sure, the issues raised in that motion had not been previously addressed by any court, and the Court therefore arguably did have good reason to weigh in, despite the way it conferred the benefit of delay on Trump. Moreover, even the government ultimately conceded that some prosecutions of a former president would be constitutionally improper, either because they are politically abusive or because they would unduly interfere with discretionary decisions entrusted exclusively to the president under the Constitution. These concessions became especially striking during the Supreme Court oral argument delivered by the government’s lawyer, Michael Dreeben.
But then the chief authored a majority opinion granting the former president full criminal immunity for some of his acts designed to prevent the transfer of power—specifically his effort to abuse the powers of the Justice Department in the service of that goal—and granting him presumptive immunity for any action considered “official” in nature. Moreover, according to the Court, in deciding whether a given act is “official,” it matters not at all whether an exercise of presidential power was both unconstitutional and illegal or whether it was done solely for a personal and corrupt reason. Such a rule effectively authorizes a president to use his vast legal authority over the executive branch—including the military—to commit many crimes, however serious and harmful, without facing future personal consequences. That is an open invitation to presidents to abuse their power.
The most indefensible aspect of the Court’s opinion is the holding that an official act cannot become criminal based on the president’s knowledge that he was acting illegally and his motives for doing so. That principle was borrowed from the Court’s decision four decades ago in Nixon v. Fitzgerald that presidents need absolute immunity from civil personal liability for official acts, regardless of whether they acted entirely in bad faith. But Fitzgerald turned on an assessment that there is no need to deter presidential abuses of power through the threat of subsequent private suits for damages, because enough other safeguards exist, and that this threat could harmfully distort presidential decision-making. It is one thing to say that we want to shield presidents from civil damages for official actions. It is quite another to say that intentional abuses of power may not become a basis for a criminal prosecution, with all of the protections that the criminal process brings with it.
For a decision creating such a potential for harm and havoc, the immunity decision is remarkably devoid of legal reasoning or support. Unable to claim any support in the text or original understanding of the Constitution, Roberts relies on a structural argument that allowing criminal prosecutions of presidents for official acts unduly constrains presidents in exercising powers conferred on them by the Constitution. Thus, for example, the Court notes that investigation and prosecution of criminals is an exclusive province of the Department of Justice, and that Congress may not direct the president to dismiss, or prevent the president from dismissing, one of his subordinates in the executive branch. Based on those two propositions, it concludes, as a matter of law, that there can be no prosecution of a president who is alleged to have corruptly ordered the acting attorney general to take actions designed to prevent the lawful transfer of power and to have threatened to fire that individual for refusing to take those illegal actions. That makes no sense. It is one thing to say that Congress cannot interfere with normal or semi-normal exercises of a president’s discretionary powers. It is quite another to say that the criminal law cannot be applied when the president intentionally abuses those powers in an effort to overturn our constitutional system.
After all, ours is a system of checks and balances in which each of the three branches of government is allowed to impose reasonable checks on the actions of the other two. Thus, Congress can pass laws prohibiting judges from making decisions for corrupt and lawless reasons. Courts can nullify acts of Congress and of presidents as unconstitutional. As Michael Dreeben acknowledged, there are times when presidents have discretion to make decisions that the other branches may not interfere with. That has been recognized since Marbury v. Madison. But there has to be an exception when a president intentionally abuses such a discretionary power in a manner designed to overturn the Constitution itself.
Lurking in the background, especially at oral argument, was an apparent concern that denying immunity would expose former presidents to routine retaliation at the hands of their political opponents. But is that a legitimate concern? The republic had existed for more than two centuries before a former president was indicted for anything. During all that time, no one thought presidents were immune from punishment for intentional abuse of their constitutional powers. When an indictment finally came, the conduct at issue was sufficiently egregious that it hardly suggests that future presidents have reason to worry about politically motivated prosecutions. It seems that the justices should have been more concerned about the consequences of turning presidents loose to abuse their offices without fear of criminal responsibility.
Even more remarkable was the Court’s decision to grant this new and sweeping protection even as the nation was facing a significant possibility of the reelection of a former president who did everything he could to corrupt the process of counting the votes in 2020 and then, when that failed, encouraged an insurrection. That reality should have placed the risks of immunizing a lot of presidential actions squarely on the table.
Returning to the question raised at the outset, there is little reason for confidence that democracy and the rule of law will be respected this coming December if the Court is asked to rule in a manner that could affect who is inaugurated in January. The Court has forfeited any presumption of good faith at this point. The immunity decision is that bad.
– Paul M. Smith is Senior Vice President at the Campaign Legal Center and a Visiting Professor from Practice at Georgetown Law. He practiced law for many years as a partner at Jenner & Block LLP, where he chaired the Appellate & Supreme Court Practice and the Election Law Practice. Published courtesy of Lawfare.
