The real game in Texas v. Pennsylvania

Many Americans will breathe a sigh of relief when the US Supreme Court decides Texas v. Pennsylvania. Credible legal experts agree that the last-ditch effort will fail, presumably ending the increasingly wild series of election lawsuits filed by and on behalf of the Trump campaign to overturn the results of the 2020 election. Nonetheless, the participation of seventeen states and the support of 126 Republican members of Congress has attracted intense attention, curiosity, eager anticipation among Trump supporters, and anxiety in the United States and throughout the world.

The suit itself in legal terms is hopeless. Efforts on behalf of Trump in other suits have failed miserably at the state and federal level, including the Supreme Court’s one-line dismissal of a challenge to Pennsylvania’s election. As election law expert Steve Vladeck explained in a Twitter thread, the claims do not ground a proper exercise of the Court’s original jurisdiction, a tool generally used only to resolve disputes between states that can’t be addressed in any other way.

As many Texas observers note, Ken Paxton, Texas’s Attorney General, is in legal hot water himself, and may be fishing for a pardon from the Trump Administration. But why, then, would other attorneys general and members of Congress support this (as Rick Hasen phrases it) dangerous garbage? All have law degrees, legal experience, or legislative experience, and they presumably can understand the basics of American federalism, the full faith and credit clause, and the fundamentally state and local nature of much of US election law.

What is happening? Symbolic political acts

Republican attorneys general and members of Congress are playing a high stakes and very dangerous version of an old game: count on the courts to collaborate with you to manage hard political issues. That way, you can reap the political benefits while allowing the more institutionally insulated actors to clean up the mess, either making unpopular decisions or resolving thorny political controversies.

As Mark Graber theorized in a landmark 1993 article, sometimes “prominent elected officials consciously invite the judiciary to resolve those political controversies that they cannot or would rather not address.” George Lovell illustrated painstakingly how this process worked in the context of late nineteenth and early twentieth century labor law and politics.

This process can go to the point of a legislature’s passing an overtly unconstitutional law for political gain, likely knowing full well that nothing will come of it. The best example is to consider events following the US Supreme Court’s decision in Texas v. Johnson in 1989 invalidating Texas’s flag protection statute. Congress responded by passing the Flag Protection Act of 1989, criminalizing flag burning on the national level. The Court predictably invalidated the law the following year in United States v. Eichman. Despite the obvious constitutional flaws, the Act had passed by a vote of 91-9 in the Senate and, as amended, by 371-43 in the House. The Representatives and Senators who supported the Act could portray themselves as patriots defending the flag, knowing that their legislation would have no meaningful effect due to the constitutional barrier – a constitutional barrier that Congress has proved itself unwilling or unable to breach through the constitutional amendment process.

Performing on the high wire with the Court as a safety net

In the current moment, it’s hard to look at the Texas lawsuit and not conclude that this is what is happening. The suit, as noted above, is not credible on its face. It employs hyperbolic language of voter fraud, unconstitutional elections, and states as parens patriae, supported by absurdist statistical “evidence” purporting to show that Biden’s victory in Georgia, Michigan, Pennsylvania, and Wisconsin happened against odds of less than “one in a quadrillion to the fourth power” (p. 8). The audience, whoever it is, is not sober judges reviewing prior decisions and the history of American elections and institutions. The filing seems rather to be tailored to draw media attention by employing shocking language ripe for quoting. The gaudy bandwagon, painted in the flashiest of colors and sporting a cacophony of cymbals and brass, leaves the station under watchful eyes ranging from MSNBC to OANN.

What’s in it, though, for those who jump on board? The question is all the more curious, given that some of the Representatives supporting this suit are calling their own elections into question.

It’s a decent deal if you look at it narrowly. The attorneys general and legislators here get the glory of having fought to “stop the steal” by publicly supporting the Texas suit and having their fiery defiance splashed all over the news media. They know they can count on the Court not to touch it, and therefore that they can reap the political benefit without any serious worry of provoking a constitutional crisis.

Why are they (and many courts scholars) so sure? In addition to the legal reasons, the Court has a set of strong institutional incentives in play. Led by consummate institutionalist John Roberts, the Court’s Justices recognize that by refusing to intervene, they will shore up their own reputation for legitimacy and take all the air out of the sails of any move for major Supreme Court reform. Rather, Roberts and his fellow Justices will be hailed by most people in the United States as defenders of American democracy, blunting in advance criticisms of the Court’s likely hard-right shift in the next few years.

The real price

The problem here is that the individuals promoting this baseless attack on American democracy are counting on the functioning of ordinary institutional incentives and structural guardrails to avert a constitutional crisis. They believe that they and the Court’s conservative majority will profit from this gambit. But we are not in ordinary political times. As I have argued previously, the Trump presidency has contributed to the amplification of a core of political participants united around racial identity who reject some of the core principles of democracy. These individuals, who are the real audience for this political stunt, hear it in a non-democratic register.

When the bait and switch is complete, why should we expect them to respond democratically? Looking at this episode more broadly, it’s enormously destructive of our democracy and I think it’s highly likely to get some people injured or killed. I hope all the fundraising and earning the hard support of the Trumpist base is worth it for those who are participating in this ugliest and worst moment of holiday pageantry.

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