Many fear Trump will take power with guns. But his real weapon is the gavel

I can still remember sitting in a youth hostel in Sydney, the soothing tones of the ABC announcer telling me Al Gore had won Florida and was all but certainly president-elect. “Let’s get something to eat,” I told my partner.

When we got back from our meal, the world had changed. How many people can remember the month in limbo that followed, or our new vocabulary of “butterfly ballots” and “chads” that were “hanging”, “dimpled” and even “pregnant”?

The QAnon Shaman, Donald Trump, and the US Supreme Court.

In the end, resolution came from the US Supreme Court, which voted 5-4 along partisan lines to end the Florida count and effectively award the presidency to George W. Bush, creating a popular sentiment that the election was stolen by Republicans.

For the first time since 1888 – when the Democrat Grover Cleveland suffered a defeat in between two victories – the winner of the popular vote could not prevail in the United States’ Electoral College system.

Donald Trump lost the popular vote in 2016 and 2020, yet he could be about to emulate Cleveland in returning to the White House after a four-year absence. But in this unprecedented race, where the candidate at the top of the Democratic ticket has changed at the eleventh hour, could we be about to revisit 2000 as well?

For most people, the fear of a close result on November 5 is that we will see a replay of the scenes at the US Capitol on January 6, 2021, when Trump supporters from Jacob Chansley in his horned headdress to Eric Munchel, with his black tactical gear and purloined zip-tie handcuffs, wandered the halls of Congress.

But what if the intervention this time is not by an unruly mob but by nine black-robed justices?

In dozens of separate attempts to overturn the results of the 2020 election, lawyers championing Trump’s claims were not only unsuccessful but scorned by judges.

“Charges require specific allegations and then proof. We have neither here,” wrote Stephanos Bibas, a Trump appointee, in rejecting a challenge to results in Pennsylvania.

“Judicial acquiescence to such entreaties built on so flimsy a foundation would do indelible damage to every future election,” wrote Brian Hagedorn in a separate case in Wisconsin.

Judge Robert Rosenberg of Broward County Canvassing Board uses a magnifying glass to view a dimpled chad (the bit of paper pushed out when a hole is punched) on a punch-hole ballot in 2000, during a recount of votes in Fort Lauderdale, Florida. Credit: Getty Images

Sidney Powell, the lawyer who vowed to “release the Kraken” with pro-Trump lawsuits, was not only fined by a Michigan court for “a historic and profound abuse of the judicial process” but – as a Delaware court revealed in February 2023 – when pressed to substantiate her claims of “demonstrable, statistical and mathematical and computer evidence” of vote-machine fraud, gave Fox News just one email, written by a woman who claimed that conservative Supreme Court Justice Antonin Scalia had been killed during a human-hunting expedition at an elite social club and that the wind told her she was a ghost. I wish I was making this up.

But that was then. More recently, the Supreme Court – with a 6-3 conservative majority, three of those six appointed by Trump – has shocked legal experts by upholding legal claims by the Republican nominee that US presidents enjoy immunity from criminal prosecution for actions undertaken when they are “carrying out the responsibilities of the executive branch under the Constitution”.

Of course, the highest court in the land is not about to do the spadework of determining when Trump was acting in his official capacity and when he was not in the days after the 2020 election, which means the cases ranged against him of trying to overturn that election’s results are delayed, even as the next one looms.

Meanwhile, people can argue that Trump’s infamous January 2, 2021, call to Georgia Secretary of State Brad Raffensperger asking him to “find 11,780 votes” was just an abundance of concern for scrutineering, or that pressuring then-vice president Mike Pence to refuse to count Biden electors from key states was simply a mundane consultation about electoral checks and balances.

Writing for Politico magazine, former federal prosecutor Ankush Khardori called the ruling last month “one of the most brazenly political decisions in the history of the Supreme Court”, arguing that it “might come to be known as Bush v Gore 2.0″.

In polling the magazine carried out in March, only 24 per cent of American voters asked said they trusted the Supreme Court to issue a non-partisan ruling on the immunity question; in a subsequent poll conducted in June, those surveyed identified the Supreme Court as the least trustworthy part of the criminal justice system.

In the weeks after the 2020 election, Charles Gardner Geyh, a law professor at Indiana University, described judges as “in some ways, the last wall”. “What we saw here were a bunch of overzealous lawyers trying to make the transition from the political realm, where facts and law have ceased to be very important, into the judicial realm, where the norms are still hard and fast,” he added.

But what if the Supreme Court itself upends the norm? Bush v Gore had its origins in a state where the Republican candidate’s brother was the governor and his campaign co-chair was the secretary of state, and where the Republican-controlled legislature was eager to assist Bush’s election. While there are no brothers this time around, there are states where Republicans may regard their primary duty in any election as being to Trump, rather than to their oath of office.

If they were to petition this conservative-majority court over a close result, could we see a Bush v Gore 3.0? Could it be that where guns failed to secure Trump’s re-election, a gavel might prevail? And what might that mean for trust in “the last wall”?

We could be very close to finding out.

Maher Mughrabi is an editor and senior writer. He is former features editor and foreign editor.

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