President Trump’s cynical effort to enlist the courts in his attempt to retain power has failed miserably. Claims of voter fraud and other theories advanced on his behalf have consistently been rebuffed by judges of all political backgrounds, including judges with conservative reputations and federal judges appointed by Republican presidents — including Trump himself. While there are still a handful of cases pending, it is the consensus among lawyers and legal scholars that they are at best on tenuous life support.
Trump’s apparent scheme to get a case to the US Supreme Court, with the all but explicit expectation that the justices that he has appointed will somehow join in supporting his fanciful claim of victory in the November election out of loyalty to him or his political cause, is almost certainly destined to defeat. At this time, there are no cases on their way to the Supreme Court that are likely to be heard or to matter. Nor is there any indication that the justices would do anything but follow the law, which is entirely clear on all the issues thus far raised in the dozens of lawsuits that Trump’s rapidly changing team of attorneys has brought and, in virtually every instance, lost. On Jan. 20, Joe Biden will be sworn in as our next president, and this phase of Trump’s assault on the rule of law, on the peaceful transfer of power that has characterized our nation ever since John Adams passed the torch to Thomas Jefferson in 1801, and on our constitutional republic will be history.
Trump’s legal claims and his legal representation have been exceedingly weak, but experience in other countries like Germany and Italy teaches us that when we take the rule of law for granted, we do so at our peril. Trump is not the first elected official to assume dictatorial powers after initially coming to power in a democratic election, and there are plenty of examples like Viktor Orbán of Hungary, Alberto Fujimori of Peru — and, for that matter, Adolf Hitler — of others succeeding. No form of government lasts forever, and democracies are there until they are not.
We must not lose sight of this assault on American democracy.
Despite Biden’s winning the popular vote by 6 million and amassing 306 electoral votes, Trump continues to proclaim victory, and his leading cabinet officers, including Secretary of State Mike Pompeo, say that they are preparing for a second term. Top Republican officials, including Senate majority leader Mitch McConnell and House minority leader Kevin McCarthy, refuse to recognize Biden’s victory and are empowering Trump’s attempt to stay in office by their silence. And, bolstered by these refusals to accept reality, the supposedly nonpartisan official charged with apolitically ascertaining the “apparent” winner of the election, GSA administrator Emily Murphy, endangers countless lives due to the coronavirus pandemic and imperils our nation’s security by withholding the action that would unlock transition funds and permit the smooth transfer of power contemplated by Congress in the Presidential Transition Act of 1963.
American democracy has institutional guardrails — separation of powers, safeguarded by an independent judiciary — to preserve our system of government and to prevent its descent into autocracy. But the strength of these guardrails and the principles they embody are dependent on the people entrusted with their implementation. State election officials of both parties who have stood up to Trump’s attempts at intimidation deserve our gratitude. So too do the judges who have insisted on deciding the cases brought to them on the basis of the evidence and the law.
Realism about the law and the judicial role includes recognition that the decision of difficult legal issues often entails judgment about conflicting values, and that such judgments are often influenced, consciously or otherwise, by the backgrounds and value systems of individual judges. The idea that judges are simply referees calling balls and strikes is a frequent metaphor, but as a general description of what judges do, it’s far too simplistic.
Equally simplistic, however, is the expectation that judges, when they ascend to the bench, will decide cases based on nothing more than the ideology of the political party with which they were previously affiliated or, worse, the wishes of the person who appointed them. Total objectivity may be unattainable, perhaps meaningless, but the rule of law requires a good faith conscientious effort on the part of judges to base their decisions on the framework of legal principles, including value choices that have been developed over time by our system of democratic lawmaking.
It has been reassuring — and, to cynics, stunning — to see judges across the country, whether appointed by Republican or Democratic presidents, following the law and insisting that allegations of fraud or other grounds for upsetting the elections conducted in all 50 states and the District of Columbia be proven. A tweet or a press conference do not require proof, and freedom of speech protects the right to make false claims. Although courts are supposed to be different, in some countries they have failed to stop despots from taking or staying in power. Perhaps the most important story of the 2020 election for American democracy will be about the dog that didn’t bark: the judges who did their jobs exactly as the Constitution envisions.
With two months until the inauguration and a president desperate to stay in power, the attempt to subvert the election is not over. But if our democracy survives the current president’s onslaughts, it will be due in large part to the existence of a judiciary committed to the rule of law.
Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and a frequent appellate advocate. Follow him on Twitter @tribelaw. Joseph R. Grodin, a former associate justice of the California Supreme Court, is a professor of law Emeritus at the University of California Hastings. He is cofounder of Lawyers Allied to Uphold the Rule of Law.