Wednesday, December 23, 2020

Trump's Frivolous Election Litigation Was A Parting Gift To Conservative Judges And Justices: Unearned Credibility Regarding Law's Determinacy

 by Michael C. Dorf

My latest Verdict column considers a complaint that has sometimes been voiced by lawyers representing Donald Trump in post-election litigation: It's not fair, they say, that the Pennsylvania and Wisconsin Supreme Courts dismissed various of their claims on grounds of laches--that is, for coming too late--when earlier assertion of those claims would have been dismissed as unripe--that is, for coming too early. I explain that while Trump and his lawyers are shameless hypocrites, the complaint could fairly be voiced by others in different circumstances. The window for litigation really can be too tight--like an avocado that goes from hard to rotten with only the briefest period when it is edible.

Here I shall take my commentary on Trump's post-election litigation in a somewhat different direction. I offer what might at first appear to be a counterintuitive suggestion: that it was a gift to conservative jurists. By giving conservative jurists the opportunity to reject his baseless claims, Trump and his lawyers allowed those jurists and their defenders to claim vindication for the view of judges as umpires who simply call balls and strikes that John Roberts famously espoused during his 2005 confirmation hearing to become Chief Justice. 

Before fully explaining that idea, however, I want to be clear that I am sincerely grateful to all of the judges and justices who resisted the nonsense offered by Trump and his terrible lawyers. Trump has been encouraging his followers to threaten violence against all manner of federal, state, and local government officials, including judges. Under such circumstances, it takes genuine courage to follow the law and do one's job. In pointing out that Trump has inadvertently provided conservative jurists with a gift, I do not in any way mean to deny that those same jurists displayed real backbone and patriotism by not succumbing to his threats.

With that by-no-means-perfunctory caveat out of the way, here's my thesis:

By rejecting Trump's clearly meritless claims, conservative jurists have garnered largely unearned credibility for their position in a longstanding debate about the determinacy of law. Conservative jurists and scholars have long argued that they simply follow the law, by contrast with liberals who supposedly bend, manipulate, or disregard the law to achieve political ends. Espousing originalism in constitutional interpretation and textualism in statutory interpretation, conservatives claim to be bound and guided by formal legal materials. The claim is wrong (as Professor Buchanan and I argue at length in a forthcoming article in the Cornell Law Review),  but conservatives can now point to their near-perfect record of rejecting Trump's cases to say, in essence, "see? We follow the law wherever it leads, even to the election of a president of the other party. Thus, in future cases when we invalidate affirmative action, campaign finance restrictions  and gun control measures, or curtail abortion rights and limits on church-state separation, we will also be simply following the law rather than furthering our policy druthers."

How to push back? I would begin by contesting the assumption that conservative jurists wanted Trump to win the election. I have plenty of disagreements with conservative lawyers, but I cannot fail to note how many of the most prominent never-Trump conservatives are elite lawyers. Conservative jurists likely share the distaste other conservative legal elites feel for Trump. Thus, the premise of the credibility claim could well be false. In rejecting Trump's lawsuits, many--perhaps most or nearly all--conservative jurists did not vote contrary to their political druthers.

Yet even if we assume that conservative judges and justices would have preferred that Trump win the election, there is a separate reason to doubt the conclusion that their recent performance strengthens the argument for formalism: Rejecting Trump's claims was a no-brainer because those claims were so badly flawed. One should not earn credibility for deciding hard cases "on the law, not policy" because one has decided easy cases that way.

Trump's cases were easy for multiple reasons, beginning with the virtually complete absence of any evidence for his factual assertions. In addition, Trump's legal arguments were terrible, especially the arguments for the extraordinary relief he sought.

A well-established principle of election law disfavors post-hoc intervention by courts to throw out votes cast in good faith by voters under the rules that existed at the time they voted. In an excellent essay that is otherwise highly critical of the Supreme Court's decision in Bush v. Gore, Jonathan Manes nonetheless notes a crucial distinction between that pro-Republican SCOTUS intervention and the one Trump sought this year. Manes writes:

In that case, candidate Gore was trying to come from behind to win the election by hoping to find enough votes in South Florida that had gone uncounted . . . .  The Supreme Court ended that effort by saying, in effect, that the recount was too haphazard and standardless to be trusted. [What] the Court was contemplating this year was even more dangerous. After the election, the Trump forces asked the courts to cancel ballots from eligible voters that were already cast and counted. They were asking the courts to discard ballots not because they were fraudulent or because there was any doubt that they reflected the will of an eligible voter, but based on technicalities or disputed interpretations of state laws. More bluntly, people’s votes would be trashed to pay for the supposed sins of state courts and election officials who exercised their authority to make voting easier or more certain.

To contrast the relief that Trump sought with the kinds of legal questions that typically divide liberals and conservatives requires a clarification about the nature of legal realism, at least as I and most mainstream liberals understand it. Mainstream liberal legal realists--which is to say just about all liberal judges and most liberal legal scholars--do not claim that law is thoroughly indeterminate. Except as applied to a handful of radicals, that is a caricature promoted by conservative legal formalists. Rather, mainstream legal realism makes claims about the sorts of cases that courts--especially apex courts--decide. Here is how I would state my robust but hardly radical legal realist view:

Legal rules and standards are fairly determinate over a fairly wide domain that often goes unnoticed. However, litigation has a selection bias for cases in which the facts are unclear and/or the law is under-determinate. As one goes up the chain of appeals, the selection bias for law's under-determinacy increases. Consequently, legal issues that reach courts of last resort like the US Supreme Court are usually highly under-determined by the formal legal materials. Despite what the judges and justices say about the supposed objectivity of their methodologies, that selection bias ensures that something other than consensus about the formal legal materials will usually determine results, especially in courts of last resort. Typically, that "something other" includes the priors--values, ideology, sympathies, etc.--of the judges and justices.

Normal litigants have resource constraints that prevent them from bringing cases that are certain to lose. Those constraints did not operate on Trump's post-election litigation for two main reasons. First, Trump is a malignant narcissist incapable of accepting bad news or good advice. Second, whereas bringing losing lawsuits typically costs clients money, Trump has been perversely able to raise money from his gullible supporters by treating the lawsuits as a fundraising vehicle. The only "normal" constraint that operated on Trump was that he, like a typical litigant, was unable to find respected attorneys willing to stake their reputation on his absurd arguments. That's why he was relegated to relying on disreputable and inexperienced attorneys, whose incompetence simply exacerbated the underlying flaws in the merits of the claims.

Consequently, the Trump litigation was the exact opposite of typical litigation, especially in apex courts. Whereas the litigation system has a selection bias for cases in which the pre-existing law under-determines the outcome and thus leaves the decision largely to the ideology and values of the judges and justices who decide the case--even when they claim and may actually believe that they are simply following the objective law--the Trump cases were over-determined.

The willingness of conservative jurists--including Trump appointees--to reject Trump's baseless election litigation shows that those jurists are not spineless hacks. That is not nothing. Authoritarians in formerly democratic countries sometimes name loyalists to the judiciary and then rely on those loyalists to subvert the law and the constitution. In this respect, I am sincerely grateful that Trump outsourced the selection of his judicial nominees to Mitch McConnell, who, in turn, chose young strongly ideologically conservatives, because ideological conservatism with respect to the courts is not the same thing as loyalty to Trump.

But to acknowledge that the conservative judiciary is not filled with spineless Trump loyalists is to say nothing about the debate between liberal legal realists and conservative legal formalists. The performance of the conservative judiciary during the 2020 post-election litigation should not count in favor of the formalist position in that debate, even though it will likely be invoked for that view.