Away from the ballot box, this vote is stacked for Trump

As the free world girds its loins for a new leader, it is unclear whether the next US president will be elected by a democratic vote or by the six Supreme Court judges unfailingly loyal to the Republican Party. Both candidates are “lawyered up” with hundreds of professional advocates retained on each side to challenge the ballots. Republicans have already brought 130 court actions about electoral arrangements. Before the result is certified by the president of the Senate next January, it may depend on a decision (predictably, 6-3) by the politically divided Supreme Court.

Donald Trump knows there’s a conservative 6-3 majority on the US Supreme Court bench.Credit: Illustration by Monique Westermann

The politicisation of the American judiciary is usually traced to the case of Bush v Gore in 2000. The vote in Florida was too close to call – Bush was a few hundred ahead on the voting machine totals, but there were demonstrable irregularities that discounted votes for Gore. The state Supreme Court, sensibly and fairly, ordered a manual recount, but five federal Supreme Court judges appointed by Republican presidents – and contrary to precedent against meddling in state court decisions about state electoral law – found pettifogging reasons for ruling it was too late for a recount. It awarded the presidency to Bush. Gore disagreed (as did most constitutional scholars). Unlike Trump whenever he loses, Gore accepted the result.

This case is usually regarded as an example of party-lines jurisprudence. But this is not quite correct: among the four dissenters was a Ronald Reagan appointee, David Souter. He derided the majority opinion and upheld the order for a manual recount. He displayed integrity, a quality that should be required of all who hold judicial office. It is sought in Britain by having an independent Judicial Appointments Commission which does not enquire into the political allegiance of candidates, unless they are overt. But under the personal appointment power of an American president, they are determinative. So much so that the media, in reporting court cases with political ramifications, now routinely identifies the identity of the president who appointed the judge.

Trump, in his previous term, was able to appoint 220 federal judges (three to the Supreme Court), as advised by the Federalist Society, right-wing lawyers who nominate judges of similar bent. A few were so intellectually challenged that the American Bar Association deemed them unqualified, but they were appointed nonetheless. The judge who stopped the “slam-dunk” prosecution of Trump for hoarding classified documents at Mar-a-Lago, on the astonishing grounds that the special counsel who brought it was illegally appointed, was herself a Trump appointee. The case has had to go on appeal, thus preventing his conviction before the election.

Members of the US Supreme Court: Front row: from left, Sonia Sotomayor, Clarence Thomas, Chief Justice John Roberts, Samuel Alito, and Elena Kagan. Back row, from left, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson.Credit: AP

The current Supreme Court is locked into its 6-3 conservative majority. Its judges have no retiring age. The most reactionary of all, Clarence “Uncle Tom” Thomas, would be unlikely to be confirmed today, although in 1991 the evidence of his sexual harassment was brushed aside (by Joe Biden, then chair of the Judiciary Committee). Thomas’ wife Ginni is a zealot for Trump, implicated in his attempt to overturn the 2020 result.

The conservative judges fulfilled Trump’s promise to his religious base by reversing Roe v Wade, notwithstanding that it had stood as law protecting abortion rights for half a century. They handed the National Rifle Association a 6-3 victory by striking down a sensible New York law requiring buyers of guns for use outside their house to provide evidence that they needed them for that purpose. This was ruled unconstitutional because, in the warped opinion of “the six”, the right to carry guns and to shoot them anywhere at any time prevailed over public safety.

Worst of all came the decision in July that Trump and any future president could not be prosecuted for crimes committed in office. No longer can it be said of the US, as of Britain since the trial of Charles I, that “no matter how high you are, the law is above you”. In Trump v US – an appeal against the special prosecutor’s indictment of Trump for his criminal attempts to overturn the election result by bullying and threatening officials (the attorney-general, the vice president, and the election offices of Georgia and Alabama) – the court decided Trump had “absolute immunity” from prosecution for crimes committed in the exercise of “core” presidential duties. These include appointing judges and granting pardons, for which a president might now accept lavish bribes.

The court said Trump must be presumed innocent of any other crimes committed while president unless he acts solely in a private capacity. So if Trump were to kill a White House gardener in a fit of rage he might be indicted, but not if he arranges for the CIA or FBI to have him arrested and imprisoned. So Trump and future presidents are, for the first time in American history, above the law.

What is likely to happen next week? Trump has not made his previous mistake of retaining bad lawyers – bad because they were incompetent (60 of their 61 motions were thrown out) and morally bad as well (so far, no less than 14 of them have been convicted or indicted or disbarred for filings that they knew to be false). Trump has hinted at “a little secret” plan cooked up with the leader of Congress. My guess is that, should he lose, it will be a challenge to the certification of the election next January by the president of the Senate.

The Senate president in 2020 and Trump’s vice president was Mike Pence, who refused his demands and certified Joe Biden’s victory. But this time, the Senate president is Kamala Harris, and Trump’s lawyers may ask the Supreme Court to remove her. There are good legal answers, but with “the six” you never can tell. Just two days ago, as if in rehearsal, they decided to help Trump by resurrecting a decision by the Republican governor of Virginia to intrusively vet ballots from overseas. This had been struck down by a federal judge but, by 6-3, and without argument, the order was reinstated just in time for the election.

If Trump clearly wins, Harris, like Al Gore, will concede defeat. But this time, Trump would be the first president in American history who could commit crimes with impunity. He has claimed to have many enemies whom he has threatened to prosecute, and his vengeance could not be deterred by the threat of indictment. America, famously self-styled a government of laws not men, will be governed by an untouchable.

Geoffrey Robertson KC is author of Crimes Against Humanity – the struggle for global justice.