Lost in the shuffle with Kennedy's retirement from the Supreme Court is the growing importance of the courts in resolving the outcomes of our increasingly complicated and fractious elections. Last fall I wrote a piece for the Washington Post attempting to clarify the seemingly confusing question of why the President would attempt to undermine confidence in the integrity of an election that he won. The takeaway point is that undermining Americans' faith in the electoral process is one of the basic goals of the Trump "movement" because when that faith disappears, then "no one really knows" who won any given election. And once every election outcome is treated as an open question, the outcome ends up being either heavily influenced or outright decided by the permanent, non-elected institutions of the state: courts, bureaucracy, and, in truly failed states, the military.
I mentioned in Episode 006 of the podcast that the growing chasm between how our system is supposed to work on paper and how it works in practice is one of the symptoms of a failing state, or at the very least democratic backsliding. Elections decided (or influenced) by something other than an actual count of the ballots cast are another symptom. Trump is setting up an insanely dangerous dynamic wherein the only way we can know if an election was fair is if Republicans win – that is, victory by the right is sufficient evidence that the insidious forces of liberalism were thwarted in their many efforts to rig the election. If the right loses, conversely, then that is sufficient evidence that the election was rigged against them.
The short-term outcome is that American courts are likely to be called upon again, as they were in 2000, to resolve election outcomes in this new poisoned-well dynamic. Bear that in mind when realizing how Trump is reshaping the Federal courts.
Then go have a couple drinks.