An Independent's Take on January 6th and the Supreme Court

Democrats and Republicans, Please Don't Screw This Up

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“To the People of the State of New York: Among the numerous advantages promised by a well constructed union, none deserves to be more accurately developed than its tendency to break and control the violence of faction.”

- James Madison in Federalist Papers No. 10

Mea Culpa

I am a big believer in accountability, so I am going to begin this piece with two apologies. As you see in the title, I am politically independent and I have been for quite a few years now. Back in 2016 I thought both Hillary Clinton and Donald Trump were terrible candidates for President. My approach to that election was to throw up my hands and say “screw this, I am sitting this one out”—so I did not vote. When Trump won, I was not particularly worried about it one way or the other. In fact, I was living in Washington D.C. at the time, and I attended his inauguration and bought a knock-off MAGA hat as a souvenir from a street vendor (an act that brought me great mischievous pleasure). At the time, I thought there was a small chance he could turn out to be a good President. After January 6th, I have to admit that I was very, very wrong and I owe an apology to some Hillary supporters. Some of you perceived a fundamental flaw in Trump’s character that I missed. I never thought he would have what it takes to attempt a coup, and I was wrong about that.

This means I also owe a partial apology to James Comey, John Brennan, and James Clapper. I have been highly critical of how those three intelligence agency officials bent and broke the law to hamstring Trump at the beginning of his term to paint him as a Russian asset in the court of public opinion. Now that Trump has revealed what he is capable of, I have to admit the possibility that they correctly judged his character and faced a terrible dilemma on what to do about it. I don’t let them totally off the hook because they acted too hastily. If they had kept their powder dry and waited until the days immediately following January 6th, 2021 to turn against Trump, I think they may have been able to unite congressional Republicans to turn on him. But that ship has sailed. This country is not on the same page about what happened on January 6th. Just 40% of Americans report that the January 6th attacks had a major impact on their outlook. I think this is because people don’t know who to listen to or trust anymore—it is unfortunate that Democrats have falsely rung the alarm bell so many times, that most people just ignore them.

January 6, 2021- A Real Coup Attempt

It is hard to properly emphasize just how historic and extraordinary the events of January 6, 2021 truly were. To add some historical context, it was the first time in American history that a sitting U.S. President encouraged a violent mob to descend on the U.S. Capitol to intentionally disrupt a peaceful transition of power.

That’s pure madness.

Politically incited mob violence is the sort of stuff you see on the news happening in poor places far away—not here. If the U.S. votes to return Donald Trump to power in 2024, many Democrats will regard it as an authoritarian rising to power—and they will not necessarily be wrong.

January 6, 2021- A Narrative

January 6, 2021 was a Wednesday. A joint session of Congress was set to convene in the U.S. Capitol to certify Joe Biden’s electoral vote win. All the politicians are supposed to meet up and clap—it is typically a formality, but not on January 6, 2021. That day, thousands of supporters of President Trump gathered near the White House to hear the President speak at 12:00 P.M. Tensions were running high because President Trump had made allegations of election fraud. Some people dismiss those claims out of hand but I don’t. I treat these claims seriously because I believe that if one side in an election is engaged in systematic cheating, that arguably renders the result of the vote invalid. Therefore, if President Trump’s allegations are true, that brings his actions on January 6, 2021 closer to an act of moral righteousness. President Trump wants others to see him as a man seeking justice—who is willing to cross the Rubicon when his political opponents wrong him and cheat the rules. Fine by me, I am happy to make an objective assessment of his electoral fraud claims. As you see below, I think they fall far short of justifying his actions.

The Evidence for Voter Fraud (a Brief Digression)

Trump, his campaign, and his supporters have extended many (for lack of a better word) whacky theories of electoral fraud. I will ignore the most “out-there” theories and address the two that I believe deserve a serious response: (1) states ignored their own laws during the 2020 election, and (2) ballot harvesting.

Trump alleged voter fraud in multiple states, but I will focus on Wisconsin and Georgia to present my case because I think they give Trump his best arguments. The Wisconsin Supreme Court recently ruled that the state broke the law by permitting ballot drop boxes during the 2020 election. According to the Wall Street Journal, the Wisconsin statute at issue provides that ballots “shall be delivered by the elector, or delivered in person, to the municipal clerk.” The Wisconsin Supreme Court went on to demonstrate its overwhelming intellectual firepower by concluding “an inanimate object, such as a ballot drop box, cannot be the municipal clerk.” Full disclosure, I did not read the opinion or the statute at issue, but I see room for argument. Regardless, there were apparently 528 illegal drop boxes used in the 2020 elections in Wisconsin. The strongest argument I can conceive for how this amounts to electoral fraud is as follows: these drop boxes were clearly illegal and likely swayed the vote totals decisively because (1) Democrats were on average more afraid of Covid than Republican voters (so more likely to use the drop boxes), (2) these drop boxes were set up in populated areas where Democrats were likely to use them, and (3) the mere existence of drop boxes enables ballot harvesting. Ballot harvesting occurs when a third party (such as a Democratic party operative), collects ballots and submits them to a drop box. In many states, ballot harvesting is illegal—these states require that the voter actually place his or her filled-out ballot in the box. The organization True the Vote purchased and analyzed cellphone location data from the months before the 2020 elections and determined that many cellphones repeatedly came close to drop boxes in the months before the 2020 election. As far as I know, there have been no official investigations into these allegations. For example, in Georgia True the Vote submitted to the Georgia Bureau of Investigation (GBI) evidence that 279 cellphones were repeatedly tracked multiple times within 100 feet of an absentee drop box. The GBI said the cellphone location-tracking evidence alone did not amount to sufficient probable cause to investigate. This strikes me as BS. Why not dig a bit into the background of these folks and see if any were political operatives? Why not convene a grand jury, or ask a judge about the existence of probable cause? I can’t fathom a good reason not to try to investigate these 279 folks. If there is no fraud, a thorough investigation will put the allegations to rest. Left-leaning outlets like NPR quibble, but I have not seen any outlet provide a well-reasoned explanation of why cellphone tracking data is insignificant—that’s because cellphone tracking data is very, very significant.

Regardless, even assuming that the ballot boxes in Wisconsin were illegal, that their presence helped Democrats, and that ballot harvesting occurred, those are still not sufficient grounds to claim systematic election fraud. Why? Simple. There is no evidence that any votes were systematically faked. Sure, the Democrats are not supposed to have their operatives collect ballots from old and poor people to drop off at the ballot box, but is this really something worth attempting a coup to prevent? No. It’s not even really a close call. Just no.

The next argument you will hear is that, surely these Democratic ballot harvesters were filling out empty ballots or engaged in other chicanery. True, it is certainly possible. But there is no evidence that it occurred systematically, and you cannot get my support for a coup without strong evidence. Sorry. Ok, back to the events on January 6, 2021.

January 6, 2021- A Narrative (Continued)

At Noon, President Trump spoke to his supporters at a rally near the White House where he said, “We will never give up. We will never concede.” He also said, “Mike Pence, I hope you’re going to stand up for the good of our Constitution and for the good of our country. And if you’re not, I’m going to be very disappointed in you.” Ultimately, these supporters began marching to the Capitol chanting “Hang Mike Pence.” This may sound confusing—why is President Trump attacking Vice President Pence? I provide a bit of background on this below, but if you already know the background, feel free to skip this next section.

John Eastman’s Coup Plan

John Eastman is a conservative lawyer who likely began advising President Trump in August 2020, but did not begin working closely with him until December 2020, after the election had been decided.

Eastman pushed President Trump and Vice President Pence to try to overturn the election on January 6, 2021. Eastman advised Pence to take action at the joint session of Congress during the election certification ceremony—when the Vice President presides over the counting of electoral votes with all Senators and Representatives present. At that time, Pence was supposed to state that because there are ongoing disputes over results in 7 states, there are no electors that can be deemed validly appointed in those states. This would mean that there were 232 votes for Trump and 222 votes for Biden—then Pence was supposed to simply gavel-in Trump as the re-elected President of the United States. Eastman said that Vice President Pence should do this without asking for permission—that he should let the other side challenge his actions in Court. This would have plunged the country into unprecedented uncertainty.

The day before January 6, 2021, Vice President Pence’s chief counsel provided the Vice President with a three page memo on the validity of Eastman’s scheme that concluded by saying, “if the Vice President implemented Professor Eastman’s proposal, he would likely lose in court. In a best-case scenario in which the courts refused to get involved, the Vice President would likely find himself in an isolated standoff against both houses of Congress, as well as most or all of the applicable state legislatures, with no neutral arbiter available to break the impasse.”

January 6, 2021- A Narrative (Continued)

Before Trump began his speech to his supporters, he called Vice President Pence on the phone to chew him out. Trump yelled at him and called him a pussy for not being willing to go through with Eastman’s scheme. Later, while Trump was speaking to his supporters, Vice President Pence tweeted a link to a formal open letter publicly saying what he had already told Trump privately. This letter is truly historic. It says, “it is my considered judgment that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not.”

When Trump’s speech ended, testimony by Cassidy Hutchison alleges (secondhand) that Trump was told by his security detail that he could not go to the Capitol, and that Trump then lunged for the wheel of the limousine to attempt to force it to go to the Capitol. Trump denies this allegation. True or not, Trump did not follow his supporters to the Capitol.

At 1:00 PM, an initial wave of protesters stormed the outer barriers of the Capitol.

At 1:05 PM, Speaker of the House Nancy Pelosi banged the gavel to call the joint session of Congress to order in the Capitol.

At 1:30 PM, protesters overcame the police outside the Capitol building.

At 2:00 PM, protesters broke windows and climbed into the Capitol. They opened doors for others to follow. At that time Secret Service agents removed Vice President Pence from the floor of the Senate. He was later taken to a loading dock in the basement of the building. Secret Service agents tried to convince Vice President Pence to leave the premises, but he refused because he did not want the world to see the Vice President fleeing the Capitol, despite the fact that a mob was trying to find him.

At 2:20 PM, the Capitol Building went into lockdown.

At 2:24 PM, Trump tweeted: “Mike Pence didn’t have the courage to do what should have been done to protect our country and our Constitution.”

At 2:38 PM, Trump tweeted again: urging people to “stay peaceful.”

According to Cassidy Hutchinson, while his supporters breached the White House, Trump “rebuffed efforts by his aides and family members, including his daughter Ivanka, to put out a statement telling the mob to stand down.” It was not until hours later that President Trump released a video telling his supporters to “Go home. We love you. You’re very special.”

These actions are clearly disqualifying for the man to serve as President. Even if evidence comes out that there was massive election fraud, that is irrelevant to my conclusion, because Trump did not know about that evidence at the time he attempted a coup.

This is all quite astounding. How are we supposed to move forward when 49% of Republican voters now say they support Trump, and his closest competitor is Ron DeSantis with 25% support? Republicans, please do what you can to back Ron DeSantis and convince your friends, family and associates to abandon Trump. Its time.

Now, there is a serious need to discuss what Democrats should do (or rather, should not do) to prepare for the possibility that Trump is re-elected President. Let’s face it, we got really lucky that Vice President Pence is not a total toady, and stood firm while President Trump sent a mob after him chanting that it wanted to hang him. If Trump returns to office, I would anticipate he will pick a Vice President with less backbone.

Why We Need to Leave the Supreme Court Alone

There is little doubt in my mind that a re-elected President Trump would up the ante and engage in more unconstitutional activity. He strikes me as a man driven by instinct; if he can find his way back to power after blatantly and openly attempting a coup, he will be emboldened to try his luck further. The Senate may stand up to him, but it takes a majority of votes in the House of Representatives, and a 2/3 vote of Senators to impeach and convict the President. Those votes may not be there. If that is the case, the only institution capable of stopping the President will be the Supreme Court.

You might think, that’s great Alex, this is a good argument for Democrats to pack the Supreme Court, and maybe impeach a few existing justices while they’re at it. Packing the Court would mean increasing the size of the Supreme Court (which has not happened since 1869), and it would allow the Democrats to install a majority of their ideological allies. However, this would damage the credibility and legitimacy of the Court for a generation.

The Supreme Court does not have an army or a treasury, so it cannot coerce or bribe its way to power; it wields power only to the extent of its legitimacy. Meaning, the Supreme Court only gets to be referee for so long as all the players agree that it is a fair referee.

If the Democrats pack the Supreme Court before Biden leaves office, that would eliminate its legitimacy with Republicans. A Supreme Court packed with Democrats will not convince Republicans that Trump acted unconstitutionally—so Democrats need to leave the Court alone.

Could the Democrats actually do it? Before the midterm elections, the Democrats have the hypothetical power to pack the courts, but that would require an exception to the filibuster and every Democrat in the Senate would need to vote for the bill—this is highly unlikely to happen. If the Democrats perform unexpectedly well during the midterms, they could have another chance to pack the court, otherwise this chance expires if they lose control of either house of Congress in November 2022. Right now the Republicans are polling well on the generic Congressional ballot. The temptation to pack the court may grow stronger as November 8 (the midterm elections date) draws near.

Religious Conservatives on the Court

The conservatives on the Supreme Court value the Constitution deeply, and would stand up to unconstitutional action by Trump—what’s more, Republicans will actually listen to them. Doubts to the contrary stem from misunderstandings of who the conservatives on the Supreme Court are and how they see themselves.

Liberals sometimes have trouble imagining how intelligent religious conservatives see themselves and the world; this failure of imagination can lead to misinterpretations of intention. To understand an intelligent religious conservative requires imagining the worldview of a person willing to submit their daily choices, temptations and desires to the dictates of words written in a book thousands of years ago. Understanding a person with the personality capable of such deep submission is not easy for someone who is not seriously committed to faith in a higher power. The conservatives on the Supreme Court apply the same reverence for the Constitution that they apply to the word of God. They have an inherent personal disposition to submit to righteous higher authority, no matter the cost to their desires. They see intrinsic virtue in this submission. They revere this duty. Similar to Mike Pence, when Trump asks these moral individuals to violate their duty to the Constitution, they will refuse.

Ok, you might be thinking. Sure, these conservatives on the Supreme Court may revere the Constitution, but then why are they acting so radically? Why are the taking away the longstanding right to abortion?

Fortunately, I am happy to report that the answer to this is that the conservatives on the Supreme Court are objectively not an unhinged radical partisan force; they are taking part in a limited project of generational reform. In their eyes, some constitutional rulings rooted in the substantive due process clause have been built on a shaky edifice of unenumerated constitutional rights that the Supreme Court blessed of its own accord—not based upon any textually defensible reading of the Constitution. To their eyes, the Supreme Court succumbed to the temptation to impose its vision on the entire country without any constitutional authorization. Therefore, those textually illegitimate rights may be overturned without violating their fundamental reverence for the Constitution.

That last paragraph was a lot to take in, so lets unpack it. I will try to compress these concepts without loss of fidelity.

The Supreme Court Engaged in Unauthorized Action

The US Supreme Court does two main things. First, it interprets federal laws, and secondly it determines the constitutionality of state and federal laws. The first power is not overly consequential. If Congress disagrees with how the Supreme Court interprets a law, it can simply pass another law clarifying that the Supreme Court’s interpretation was wrong. Right now, this requires a majority vote in the House of Representatives, and a vote by 60 out of 100 Senators (due to the filibuster), and then the President has to sign the law. This is hard, but laws get passed all the time. It happens every year—nothing to write home about.

However, if the Supreme Court determines a law is unconstitutional, that is a much bigger deal. At that point, the the only recourses are to try to pass a constitutional amendment to override the Supreme Court decision, or to appoint justices to the Supreme Court that are willing to reverse the decision. Amending the Constitution is very hard—it has only happened 27 times, ever. The most direct route to amend the Constitution requires a proposal by 2/3 vote of the House and Senate, and ratification by 3/4 of all state legislatures. Therefore, if the Supreme Court declares a law unconstitutional, it effectively places that topic “out of bounds” for our normal democratic processes. There is supposed to be a limit on the Court’s ability to wield this great power, i.e. the Court is supposed to have to point to a right in the Constitution that has been violated, before declaring a law unconstitutional.

Generational Reform

The conservatives on the Supreme Court see themselves as undertaking a necessary generational shift in the role of the Supreme Court. As they see it, from the 1960s through the 2010s the Supreme Court was willing to invent constitutional rights out of thin air in order to declare state laws (that it did not like) unconstitutional, and the Court no longer wants to be in that business.

For the purposes of this analysis, there are two kinds of constitutional rights, (1) enumerated, and (2) unenumerated.

The enumerated rights are those that are explicitly listed in the Constitution, such as the right to free speech in the first amendment. Enumerated rights are not contested by the conservatives on the Supreme Court. The conservatives are troubled by unenumerated rights.

For the Supreme Court to acknowledge an unenumerated Constitutional right, it is supposed to undertake a historical analysis as to whether that right is deeply rooted in the history and traditions of the country. This makes intuitive sense to me, after all, the drafters of the Constitution and Bill of Rights did not write down every single right that we had, some rights were so obvious that they did not feel any need to write them down as specifically protected by the Constitution. Any such, “super obvious” right can legitimately qualify as an unenumerated right with a valid historical analysis. This is the theory anyway.

This is how unenumerated rights have been created in practice: (1) there are state laws that cultural Liberals disagree with, such as restrictions on abortion, (2) there is insufficient political support to pass federal laws or a federal constitutional amendment to override those state laws, (3) the cultural Liberals on the Supreme Court see that Congress is not taking action to override the state laws, and decide to try to do something about it, so they scan the Constitution to look for an existing right that has been violated, (i.e., one that they can point to and say, “this specific text in the Constitution is violated by that state law we don’t like”); (4) the cultural Liberals find no such text in the Constitution, but they are not deterred; they simply make-up a new “unenumerated” Constitutional right and provide a thin historical analysis, or ignore the historical analysis requirement entirely.

This is pretty shady. The thing that makes this complicated is that I happen to strongly support all of the rights that were created in this way. These rights include:

• The right to contraceptives (Griswold v. Connecticut)

• The (former) right to pre-viability abortion (Roe v. Wade; Planned Parenthood v. Casey)

• The right to marry a person of a different race (Loving v. Virginia)

• The right to marry an individual of the same sex (Obergefell v. Hodges)

As a supporter, this is a scary list to look at because these rights are all vulnerable to being overruled if conservatives take their analysis to its logical conclusion. I don’t think any of these precedents are in imminent danger because only Justice Thomas has publicly stated he wants to take the analysis to its logical conclusion, nevertheless, I acknowledge this is a scary list.

Right now, cultural conservatives have a majority on the Supreme Court. If they wanted to, they could impose their view on the entire country like the cultural Liberals did—but they have refused that temptation. For example, the Supreme Court could have hypothetically overrode all state laws that provide a right to abortion by finding a right to fetal life from conception is infringed by such laws. This would have outlawed abortion in all blue states like New York and California. The Court chose a much more modest approach, simply overrule Roe and Casey, which had the effect of kicking the issue back to the states. This demonstrates that the Court is acting consistently with its limited mission of restoration, not radical transformation. Seen in this light, I perceive no danger the Court would be willing to overstep in service of a man like Donald Trump.

Conclusion

Democrats may be tempted to pack the Court, but this would be unwise. Democrats need the Supreme Court to enjoy a high level of legitimacy among Republicans as an insurance policy if Trump returns to power. The alarming events of January 6th underline this priority. The Supreme Court, as currently constituted, will be an effective check against Trump. The Supreme Court has shown restraint and will continue to be bound by the Constitution. Yes, the Supreme Court will deal Democrats some additional political setbacks, but those will be limited in scope when compared to the potential unmitigated disaster of a second Trump Presidency unconstrainted by a legitimate Supreme Court.