American democracy, writes political commentator Brian Beutler, is trapped in a precarious contradiction. On one hand, outrage against the corruption and harmful leadership of President Donald Trump has made it likely that he and his party will face backlash at the polls, but at the same time, the likelihood of that backlash provides Trump supporters with “fuel for further attempts to overturn elections.” This creates a situation in which “Trump has everything to lose by losing, and nothing to lose by attempting another coup.” And according to Beutler, the Supreme Court has been motivated to help him do it.
“While his corruption will make it easier for Democrats to sweep the midterm elections, it will also make him more determined to steal back their victories,” Beutler explains. “That’s why the past month’s news read the way it did: A slush fund to buy a second insurrection. An election-denying prosecutor in North Carolina named Dan Bishop who’s up to god knows what. A promotion for the acting attorney general who’s promised Trump total loyalty. A new interim spy chief, chosen for his willingness to mine confidential government documents seeking dirt on Trump’s enemies. All while Trump increases the pace of looting, and abandons any pretense of trying to win the old-fashioned way.”
More alarming still, says Beutler, is that Republicans in key positions “seem willing or eager to go along with him. His allies in state legislatures helped national Republicans steal perhaps five to 10 House seats through mid-Census gerrymandering. They were given a leg up by Republicans on the Virginia Supreme Court, which summarily voided a voter-approved pro-Democrat gerrymander, and by Republicans on the U.S. Supreme Court, who allowed southern Republican legislatures to redraw congressional maps in the middle of primary elections, creating new Republican seats just in time for the midterms.”
And it is this meddling by the courts that Beutler argues should have Americans most concerned. As he notes, while in 2020, the Supreme Court and lower courts across the country rejected Trump’s efforts to overturn the election, now, the political landscape has changed, and “they, too, have everything to lose by losing, and nothing to lose by helping Trump complete his coup. In the winter of 2020, their interests diverged, or at least seemed divergent. Today, they are completely aligned.”
When Trump staged his political comeback, says Beutler, he “gave the Republican justices a choice: you’re with me or you’re with the Democrats. They didn’t hesitate to pick a side. They went out of their way to protect Trump from political and criminal accountability for the January 6 insurrection. Then when Trump returned to power, they used their shadow docket to advance his interests by fiat, without explaining themselves to the public. And that was before their ruling in Callais, which transformed the Voting Rights Act from a statute that prohibited gerrymanders intended to disenfranchise black voters into a doctrine meant to encourage anti-black gerrymanders and forbid pro-minority gerrymanders.”
They’re taking such action because “they can see the anti-Trump rebellion brewing, and they know it doesn’t just threaten their power. It threatens to consign them to the legal anticanon along with some of the country’s greatest historical villains. ... Every law student in America learns about the anticanon — the worst rulings in the Supreme Court’s history: Dred Scott, which upheld slavery. Plessy, which upheld segregation.” Now the Roberts Court has been adding its own decisions that will be decried by history, such as gutting the Voting Rights Act and “Trump v. United States, which transformed the presidency into a zone of lawlessness for would-be dictators.”
Today, as Beutler explains, Republicans face a near-future where Democrats score big midterm wins, flipping key districts and states and maybe taking back the Senate, which would allow them to block Trump’s judicial nominees and agenda. “Now ask yourself,” Beutler wonders, “what wouldn’t Roberts and the other justices do to stop this?”
In the face of such sweeping Democratic wins, forecasts Beutler, “Trump alleges fraud. So does the loser, Ken Paxton, who also happens to be [Texas’s] sitting attorney general. They race to federal court, claiming Paxton is the rightful victor. A Republican judge disqualifies enough ballots to flip the result. Democrats appeal. The appeal reaches the Supreme Court quickly. Control of the Senate, and thus the legitimacy of the entire U.S. government, hangs in the balance.”
