126 Legal Novices or the New Republican Normal? What Comes After Trump?

by Sidney Tarrow

On December 11th, 126 Republican members of the House of Representatives signed an amicus brief to the United States Supreme Court in support of the State of Texas’s complaint that the votes of four states in the Presidential election should be declared invalid because of supposed electoral irregularities. Texas’ suit was quickly slapped down by the Court. Two Justices, Alito and Thomas, thought the Court should have docketed the case because, in earlier, lower-stakes cases, they had expressed the quirky view that the relevant statute confers on the Court no discretion to reject such “original jurisdiction” suits.  But even Alito and Thomas joined the other seven justices in voting to deny Texas the extraordinary intervention it sought. Although Texas cited The Heritage Foundation’s study of electoral fraud (cit., pp. 11-12) as an authority, even conservative lawyer Hans Von Spakovsky wrote shortly after Texas filed its case, “this is the legal equivalent of a Hail Mary pass.”

No serious analysis of the Texas suit gave it any chance of getting through the Supreme Court. But the case raises a different kind of issue: who were the 126 members of the House who went on record in support of Texas’s case? Were they legal nonentities who were willing to become mouthpieces for one of the most outrageous legal/electoral theories since the 1876 Hayes/Tilden standoff, or were they the heart of a new and more frightening post-Trumpian right?

To be sure, among the amici there were some reliably unhinged stalwarts like Representative Louis Gohmert of Texas, who characterized Texas’ suit as an effort to “preserve our republic,“ and like the vociferous Jim Jordan of Ohio, who declared that “Over 50 million Americans think this election was stolen.”  “It looks like we have a new leader in the ‘craziest lawsuit filed to purportedly challenge the election’ category,” wrote Steve Vladeck on Twitter. In a blog post, electoral law expert Rick Hasen called the Texas filing a “press release masquerading as a lawsuit.”

In support of the first thesis, it would be easy for the Democrats to dismiss eccentrics like Gohmert or incendiaries like Jordan, but that would give the governing party no one with whom to negotiate. Moreover, a quick look at the signers’ resumes will show that they are not the unlettered racist and sexist “base” that Bryan Schaffner and his collaborators found in the Trumpism electorate. The Republican legislative elite is a far more sophisticated and coherent conservative bloc than Trump’s MAGA-hat-wearing followers. As Matthew Grossman and David Hopkins put it in their fine book, Asymmetric Politics (2016), “Conservatism [is] a vibrant intellectual movement that built institutions to promote broad principles and cultivated a broad base of popular support, establishing itself over the past 50 years as the main intellectual and popular engine of Republican politics” (p. 80). What is important to recognize is that they are part of a movement, one whose roots go back much further than the advent of Donald Trump and are virtually certain to survive his political demise.

This is not a movement that admits of a great deal of internal diversity. Driven by a mixture of ideological dogma and narrow self-interest under a carapace of populism, it became an instrument for unpopular economic programs, as Lance Bennett and Stephen Livingston write in their penetrating new book, The Disinformation Age. This disjuncture left the party with an umbilical connection to rightwing media sources, resulting in “attacks on the press, the spread of hate and propaganda, efforts to exclude various minority groups and the rise of ethnic nationalism” (p. xiv).

Underlying this ideologically structured movement, with its indifferent relationship to the truth, there developed a base that is not so much misinformed as uninformed – even on issues of great moment, like the current Covid-19 Pandemic. When media tracker SocialFlow tracked clicks from roughly 4,000 media entities on COVID-related pages, it found that States that voted for President Trump tended to have high coronavirus caseloads compared to how much COVID content they read online, while the opposite is true of states that voted for Biden and Harris. While Biden voters were more likely to heed public health guidelines and trust information coming from mainstream media sources, Trump voters were more inclined to tune them out. “It’s clear that stories about COVID simply don’t animate red state residents the same way they do those in blue states,” SocialFlow CEO Jim Anderson told Axios.  Many of this “new” GOP base came out of the Tea Party insurgency, unaffected by information that did not come from their media crucible and prepared to hold the feet of legislative elites to the fire when they don’t show a sufficiently determined level of fealty.

The danger of Trump’s movement is not that it is made up of an uninformed mass of voters waiting passively for tweets from the master, but of well-organized groups of people who know how to mobilize others. A large portion of Trump’s core supporters came to him with substantial institutional resources defined by clear collective goals. They offered Trump not only unflinching electoral support but also organizational skills honed by participation in evangelical movements, NRA-sponsored gun clubs, and Koch network-backed nonprofits. The 126 House members who signed on to the Texas amicus brief were responding to this electoral base rather than to any hope they might have had of disenfranchising the voters of Georgia, Pennsylvania, Michigan and Wisconsin. They will be with us long after Donald Trump has either faded from the media footlights or gone to jail.

A renewed neo-Trumpian movement will capitalize on three aspects of the current state of affairs:

First, Biden’s effort to revive the economy, support disappearing small businesses, and fight climate change through increased public spending will provide an easy target for Republicans who suddenly recall that they are deficit hawks.  Second, the notable presence of the educated women and people of color with whom Biden is staffing his administration will irritate the sexist and racist nerves that many of them possess.  But the most lethal tool in the armory of the neo-Trumpian movement will be the campaign that Trump has already launched to delegitimize Biden’s election. As Hitler learned after Germany lost World War One, nothing works better to mobilize a populist base than stoking the memory of an imagined stab in the back. That is precisely the function of otherwise incomprehensible efforts like Texas’ effort to disenfranchise the voters of four other states. (If you find the Nazi comparison too incendiary, consider how, after losing his reelection bid in 2002, Viktor Orb├ín spent his years out of power rallying his right-wing populist base with bogus charges of fraud, which in turn fueled his return to the Prime Ministership in 2010 and the ensuing destruction of Hungarian democracy.)

What will the Democrats have to do to stave off these attacks on the legitimacy of their rule? It will be tempting but mistaken to dismiss the neo-Trumpist movement as an extremist fringe, for that would surely throw them into the arms of the criminal elements on the outskirts of the Trumpian corona. The goal should be try to recapture them for a constitutional conservative minority. There are three things that Democrats can do to move in this direction:

The first is to distinguish between the various sectors of the Trumpian movement and encourage a division between the party’s lunatic fringe and constitutional conservatives, like my own Representative Tom Reed, who moved from an extreme right position to a leadership role in the Problem Solvers’ Caucus.  A substantial part of Trump’s support in 2016 was based on pro-business voters and was transactional, rather than ideological. The business leaders who moved away from Trump after Biden’s victory are unlikely to support a Democratic agenda, but they are equally unlikely to support another populist like Trump, who promises chaos rather than a stable business climate. We must hope that constitutional conservatives like Judge Matthew Brann, who slapped down Trump’s lawyers’ claim of fraud in the Pennsylvania elections, and the Michigan election official, Aaron Van Langeveld, who defied his national and state party chairs, will continue to resist the blind Trumpism that we saw in the Texas Supreme Court suit.

Equally important will be the effort to transcend the sterile fight in the Democratic party between its progressive and its centrist factions and to reorient the Party toward the strategy that won it the White House in November – a frank defense of liberal democracy.  This will involve an effort to hold together the various strands of the anti-Trump resistance that emerged soon after the 2016 election. As Trump’s administration revealed a tendency to evolve into elective authoritarianism, as I have written elsewhere, the Resistance coalesced from the separate claims of these groups into a common campaign organized around the preservation of democracy.

With Trump defeated and Biden predictably re-emerging as the moderate liberal he has always been, the Resistance/Democratic party alliance has already shown a tendency to dissolve into its various ideological and interest group components, led by progressives like Bernie Sanders, who continues to see modern politics as the history of class, and younger radicals whose knowledge of history leaves much to be desired. Nothing would be more beneficial to keep a potential neo-Trumpian movement in the public eye than a Democratic party that embraces the class-laden program of Sanders and his younger allies.

The most effective – and, indeed, the most essential – weapon with which to combat the coming neo-Trumpian movement will be to remind Democrats of what can happen when progressives and moderate liberals turn against each other, and to deliberately work to unite the resources of the former Resistance with the campaign for racial justice into a movement to preserve democracy.

Some observers – like Tom McCarthy, writing recently in The Guardian, would have us rely on the buttresses of decentralization, turnout, transparency, the courts, and the media to oppose neo-Trumpism.  While I share McCarthy’s hope, I worry that these were the very institutions that allowed Donald Trump to come to power in 2016. Without a concerted movement/party alliance in civil society, I fear that Trump and his movement will give us more of the same.     


Sidney Tarrow is the author of Power in Movement (2011), and of the forthcoming study, Movements and Parties in American Political Development (Cambridge, 2021).