The legal fight that will decide the US election

The 2000 US presidential elections was the first time in the modern era that the Supreme Court played an active role in an election. Two decades later, the fight for the next justice to sit on the court — the replacement for liberal icon Ruth Bader Ginsburg — almost certainly indicates the court will play a crucial role in this year’s presidential race.

In fact, US President Donald Trump himself has said as much. On September 23, he told a pool of reporters that he thinks the election “will end up in the Supreme Court," and that it’s “very important that we have nine justices.” It doesn’t get plainer than that. According to him, Democrats have “scams” afoot — by most credible accounts, they don’t — and are somehow “rigging” the election.

However, there’s one central source of distrust of US’ electoral process, and it’s the man in the Oval Office. A perfect example is the lie that the President has repeated for months: voting by mail is somehow illegitimate and subject to fraud.

It isn’t. There are states that are vote-by-mail-only, millions of Americans do it every election year, and the US military has voted by mail for hundreds of years. According to the US Election Assistance Commission, US service members abroad cast more than 800,000 ballots by mail over the 2012 and 2016 elections combined. The US Postal Service is reliable, trusted, and perfectly capable of performing its role in this crucial election.

That’s not really the point. What Trump and his cadre of supporters are doing is laying the groundwork for the fight in the court of public opinion that will run parallel to the inevitable real court proceedings following the vote. Look for Trump and his supporters to go after mail-in ballots early, often, and in key states such as Pennsylvania, Florida, and Ohio especially.

All of this is very likely to happen, and a Supreme Court with just eight of nine justices may well cast the deciding vote for President. That is, unless Republicans can somehow get Trump’s nominee, Amy Coney Barrett, through the Senate with truly unprecedented speed, and at a truly unprecedented time.

Frankly, it’s an absurd proposition to even consider filling Ginsburg’s seat a month before the election. It’s so absurd that even Republicans believed it was wrong just four short years ago. It’s easy to check their public statements over the last week and compare them to what they said about Merrick Garland, President Barack Obama’s nominee for the court.

Nearly every Republican senator in office now who was in office for the Garland nomination thought it was nothing short of an abomination. This is after the President nominated him in March, almost a full nine months before the election.

This is what Senator Lindsey Graham said of the Garland nomination in 2016: “I strongly support giving the American people a voice in choosing the next Supreme Court nominee by electing a new president.”

This was the general talking point from every sitting Republican senator at the time, and it almost always came with a warning about “tipping the balance of the court” in an election year. If Amy Coney Barrett is confirmed, she would give conservatives a 6-3 majority on the court — this will affect policy over the course of years and decades, not weeks and months.

Now, Republicans are singing a much different tune. They are doing so because they want the scales tapped in their favour when the result of the most important election in a generation comes before the Supreme Court. It really is that simple, and the fact that it’s happening after the loss of Justice Ginsburg — a tireless champion of equality and access to the democratic process — just makes it all the more despicable.

Indian observers may be confused by the state of affairs around the US Supreme Court. Some of the differences between the two courts in the world’s two largest democracies — the US has only nine justices; India has 30+; US is a lifetime appointment; India’s has a mandatory retirement age of 65 — seem completely unfathomable to the citizens of the other country. However, I have to say that right about now, the Indian system of mandatory retirement ages is looking pretty good to me.