I wrote this article a few weeks ago. I submitted it to two major newspapers as an opinion piece. The editors at both newspapers said there were no cases in the judicial pipeline, and thus my proposal was impossible. But then on Monday February 22, the Supreme Court made a decision about a Trump challenge to the Pennsylvania balloting, rejecting it with a single sentence. That might have been the chance. Maybe there is another futile legal challenge that would make this plea possible. I offer it to you because I think it makes sense even if the op-ed editors don’t.
The United States is split almost down the middle, as the last election demonstrated. Families and friends are hopelessly divided, and some people just can’t discuss politics anymore for fear of losing touch with people they care about. Some people blame Donald Trump, some blame Newt Gingrich, some trace the fissures back even farther in time.
Whenever it started, the issue today is how we are able to function as a nation when we can’t even agree on basic facts. The political polarization seems likely to last a long time, but at the very least we could heal some of the divisions by establishing one basic fact: Who won the last election. According to polls, most Republicans have been persuaded by former President Trump that the election was stolen from him. To this day, Trump continues to insist he won the election.
There is only one tribunal where this issue of fact can be resolved to the satisfaction of almost all Americans, and that is the United States Supreme Court. The current composition of the Supreme Court heavily favors Republicans. Six of its nine members were appointed by Republican presidents: Chief Justice John Roberts (appointed by President George W. Bush); Justice Clarence Thomas (appointed by President George H.W. Bush); Justice Stephen Breyer (appointed by President Bill Clinton); Justice Samuel Alito (appointed by President George W. Bush); Justice Sonia Sotomayor, appointed by President Barack Obama); Justice Elena Kagan (appointed by President Barack Obama); Justice Neil Gorsuch (appointed by President Donald Trump); Justice Brett Kavanaugh (appointed by President Trump); and Amy Coney Barrett (appointed by President Trump).
Chief Justice John Roberts could lead the Court in deciding to consider one of the many challenges to the Presidential election of 2020. The Supreme Court declined to hear three challenges, and at least sixty cases were decided by state and federal courts. Surely, there must still be one in the pipeline that would allow the Supreme Court to review the evidence and reach a conclusion about whether the election was wrongly decided, whether there was massive voter fraud, and whether voting machines were rigged to favor the Biden-Harris ticket. One of the voting machine companies, Smartmatic, has been accused of “rigging” the vote in multiple states, but it was used only in Los Angeles County. Both Smartmatic and Dominion Voting Systems have filed massive defamation lawsuits against those who accused them of switching votes from Trump to Biden.
A careful review by the Supreme Court could take into consideration the lengthy record of litigation in federal district courts and appeals courts where the Trump campaign was unable to produce any evidence for its claims of election fraud. Outside the courtroom, campaign officials made lurid charges of voter fraud, lost ballots, rigged machines, ballot dumps, and votes cast by dead people, but they didn’t repeat those claims in the courtroom because they had no evidence.
If the nation is ever to heal, there must be a reckoning with the charges that are now poisoning our politics. A sizable portion of the nation does not believe that Joe Biden won the election. A significant part of the Republican Party believes that his presidency is illegitimate. Such claims damage the ability of our political system to function. These claims were the basis of the violent siege of the U.S. Capitol on January 6 that might have led to mass casualties, had it not been for the bravery of an overwhelmed Capitol Police force. Former President Trump has made clear that he will continue to insist that the election was stolen from him. He will not stop undermining his successor.
Only an institution that has the trust of the majority of the American people, and especially an institution that has the trust of Republicans, can settle this matter to the satisfaction of the vast majority of our citizens.
Only the United States Supreme Court have the credibility to review the facts and set the record straight about the 2020 election.
Diane Ravitch's blog 
Facts are facts. The Supreme Court delivers opinions, like Dred Scott, Citizens United etc. etc. It has been wrong and on the wrong side of history many, many times. The truth will be sorted out eventially perhaps. I’m still not sure about Florida and Bush v. Gore. But the basic idea is sound – how do we restore and reinforce our faith in elections for everyone. That is worth pursuing.
Not so long ago, the Conservative (aka Extremist) majority In Supreme Court stopped the vote recount in Florida and thereby ensured their guy got into the White House
Maybe I am missing something, but I see no evidence that the Extremist Majority is any less partisan now thsn they were back then.
In fact, there is lots of evidence to the contrary.
John Roberts might be Catholic, but he ain’t Jesus Christ.
And I’m not even sure the latter could pull off the resurrection of the nation.
And PS
I don’t trust a majority who ruled as they did on Citizens United as far as an ant can throw a stick.
Probably about 1/8 inch , at best and then only if it’s a big ant.
Poet Yes, Citizens United . . . and not to mention gutting the Voting Rights Act. CBK
Extremist Justuses United
a depressing reminder of reality
I don’t think it would change anything. This is the age of narrative. People will believe their chosen narrative. To the extent the narrative is contradicted by institutions, that will just be taken as more evidence of the narrative’s truth.
The big bang theory is also a narrative.
Narrative is precisely what separates us from the other animals. As Stephen Hawking says in the Pink Floyd song “Keep Talking”, Something happened that released the power of our imagination
We learned to talk”
But not all narratives are equal.
Some narratives are more reliable than others .
The problem is not really subscription to narrative , but how one goes about deciding which narratives to subscribe to.
And most institutions are actually not very reliable when it comes to deciding between conflicting narratives. Many have a very poor track record.
Don’t confuse scientific theories with narratives.
OK, thanks Dr. FLERP
Not incidentally lots of scientific theories turned out to be wrong.
But the most important thing is not the narrative itself, but the way one decides to support or reject it.
This is the age of false narratives from the Trump party that the election was stolen, climate change is a Chinese hoax, wearing masks is oppression and covid-19 is no big deal.
Darwin’s theory of evolution by natural selection is another prominent scientific narrative — about the development of life on earth.
I think the idea that scientific theories are not narratives results from a failing on the part of scientists to describe their theories in a way that the public can understand.
The narratives are often couched in terminology and math that obscure the central story.
Darwin’s theory is actually unusual in that it was presented from the beginning in a narrative form that nearly everyone can understand.
Because of this, everyone and his brother, sister, uncle and cousin seems to believe that they have an alternative story which is every bit as good as Darwin’s.
That’s why you hear so many people refer to Darwin’s theory as “only a theory” as if to say “it’s only a story”.
Scientific theories are very particular types of stories, ones for which all the “characters” and their behaviors and actions are very tightly constrained by Nature.
It’s actually very ironic that by making his theory so understandable to the ordinary person on the street, Darwin opened it up to dismissal out of hand (without any consideration for whether it might describe reality) by a large fraction of the public.
My mom is a professional storyteller. This is her favorite story. Human beings respond to narrative:
An old woman is walking around. Her name is Truth. She is trying to find someone to listen to her, but no one will. She tries and tries in vain and is about to leave town when a man rides in on a horse. The woman tells the man of her plight. The man says, “Come and ride with me, and everyone will welcome you.
The man’s name? Story.
My mom tells it better, but you get the idea.
I once spent a couple hours with George Lakoff, who writes about political persuasion. He described the difference between liberals and conservatives in their outreach. Liberals assemble facts and appeal to the public based on reason. Conservatives tell stories about welfare queens, threats to white culture, father knows best, etc. That explains why conservatives get poor people to vote against themselves.
Wha makes Lackoff different from most political consultants is that he does not encourene people to ” make stuff up” but simply to present their facts and reason in a form that most people can relate to.
He recognizes that telling stories need not run counter to facts and reason (though it often does).
The Story Tellers
Story Tellers is what we are
With tales from near and from afar
Where we’re going, whence we came
Storytelling, the human game
An old woman is walking around. Her name is Truth. She is trying to find someone to follow her, but no one will. She tries and tries in vain and is about to leave town when another old woman, who just arrived in town walks up to her. The first woman tells the second of her plight. The second says, “Come with me, and everyone will follow you”
The second woman’s name? Sojourner
The refinement on narratives is interesting & thought-provoking. However, I’m with FLERP on the general point here. Those who cling to the narrative that the election was stolen will not be dissuaded by a SCOTUS decision. They find reasons to ignore lower court decisions made by Trump appointees. Nor should the highest court be taking up an issue that was tossed out for lack of evidence by every lower court it was brought to– what message would that send? We can blame the pandering of cynical elected officials for giving traction to this false, anti-democratic narrative that should have been quashed right out of the gate.
Diane Rarely is a political decision NOT sitting in a pool of doubt. And this situation is no different. That said, two brief points came to mind when I read your note:
First, sometimes silence speaks louder than words; and the Court’s silence on the matter, I think, is wise . . . at this point in time at least. Also, the lower courts did a good job with their rejection of the kind of propaganda that plays well in the biased press, but not in the courtroom. It’s a critical regard for truth that has already won in the lower courts.
Second, Delay, delay, delay, is a part of the Trumpist Republican strategy . . . to hold up the election results, even though they KNOW Biden’s win is legitimate–and BTW the Court also knows that Trump’s allies KNOW. They’re not after justice. They just want to make “useful idiots” out of the Court and all of the other institutions of democracy.
Delay only creates more doubt in the land and room for bad actors to further hone and solidify their propaganda . . . and it would just drain even more power from Biden and the democratic forces that have finally kicked in.
In ANY delay scenario, Trump wins; and the Court’s decision would not matter to those who already think the lower courts, even judges who are Republican, are traitors to the Trump cause because they didn’t support him. CBK
I’m with you on this one, CBK. The fact that they refused to hear the cases sent a clear message to me that hearing them would be a waste of their time. Those who have bought the Trump con aren’t going to change their minds. If you get the Sunday comics that have Doonesbury, read today’s strip. Trudeau nailed this one.
I wish I thought this would work, but I don’t. Those who believe the election was stolen want to believe that more than they care about any institution in the nation. It’s who
They are. I do not now know how to get a sizable percentage of them to not want that. I think that is the crux of the matter.
You have been talking to our progressive friends too much. The court has de-facto decided there was no election fraud of any significance. Don’t we think that a radical right court 6 to 3 with a right leaning majority since Nixon in spite of the popular vote. ;would have used any excuse to invalidate the election. Just as they eviscerated the voting rights act or flooded politics with Corporate money in Citizens United. . There was nothing credible that would allow them to do so without them staining their reputations for eternity. . Besides nothing could be said to those with no concern for democracy.
In my Blue Collar World, I came to realize that Trump represented “American values ” certainly not the values inscribed on the Statue of Liberty , certainly not the fictionalized version of History we were taught in k-12 . Those values were best described by LBJ and Bob Dylan at about the same time. Dylan in Ballad to Medgar Evers .
Here is LBJ : “If you can convince the lowest white man he’s better than the best colored man, he won’t notice you’re picking his pocket.” .
I loathed Hillary as I voted for her, but her “vast right wing conspiracy” was correct and her basket of deplorable’s speech was wrong . She called half the basket deplorable . Almost the entire basket that could support a narcissistic authoritarian demagogue was deplorable . It has little to do with economic insecurity .
But the thing to remember is they are 35% of the country( but they vote). . They have always been there. They were there in the Jim Crow anti immigrant 1920’s , there in 1954 , there in 1965 . Since,Brown and the Civil and Voting Rights acts they have been mobilized . Mobilized by a marriage between right wing economic centered oligarchs, from Koch through DeVos , Mercer and Murdoch…. Some of those oligarchs, also happen to be religious fanatics , whether they believe or are merely using the evangelicals and ultra right factions of the Catholic Church to an economic purpose .
Don’t take the word of a lefty like me, listen to those “Who left the Cult ” from Kevin Philips ,to Mike Lofgren – Stuart Stevens… . “It was always a lie ” It was always about race and grievance since Goldwater. . Listen to those who bragged about their accomplishments, everyone loves to write a book about their achievements even if those achievements are loathsome. Especially in the Education Wars the significance of the effort to fight interrogation can not be underestimated. The basis of the Moral Majority birthed in Paul Weyrich’s efforts to meld Economic Right Wingers with Religious segregationists . And more recently the ultimate goal of co-opting Public Non Sectarian Education. Appointing DeVos to destroy as much as possible .
We are shocked about Trump’s embrace of authoritarians especially Putin and in Europe. Shocked that Republican elected officials dismissed it as nothing . .For almost two decades the Religious and Nationalist Right has envied and reached out to the authoritarians in Europe . The Republicans we are told fear their base , with good reason look who that base is.
100s of thousands of US troops were left in Germany during denazification . That is not an option. But marginalizing these people going after them for their crimes and abuses , while delivering to the 60-65 percent may be the answer . The days of Obama buckling to the pressure of the right on 501c’s should be learned from .
We not reach out to the 35% you will never change them , empower the 60 % .
As usual : We should not …
Joel,
Brilliant analysis. I don’t say that lightly.
There’s no way one can reach out to deplorables and racists like Marjorie Taylor Green, QAnon and religious fanatics. They must be marginalized, as they were for many years. Behind their rage is racism, and if they don’t change, keep them out of national politics and under a rock. Because of Trump, they are riding high in the GQP. It should be out of power until it cleans its stables.
Curiously enough from today’s NY Times :
“For years, I thought people hated Obama because of Obamacare, but at some point, I realized it didn’t have a damned thing to do with no insurance,” said Mr. Finney, who is Black. “White people hated Obama because he was a Black man who became president and elevated the Black race. Obama leveled the playing field. And that was a problem because before that, most white people truly felt that America belonged to them”
The ” American Values ” crew can actually have a Black friend (at work). Like the officer in this story who takes a photo with a BLM activist but feels his Nation is being taken from him. He is one of the first seditionists into the Capitol’ Because as Bob Dylan wrote:
“You’re better than them ,You’ve been born with White skin , And it ain’t him to blame he is only a pawn in their game. ”
As usual, I’m completely with you on this, Joel.
The GOP has an experienced Ivy League story teller who is going to run for Portman’s seat. The author of Hillbilly Elegy, J. D. Vance, is backed with $10,000,000 from tech tyrant Peter Thiel who said, women voting in a capitalistic democracy is an oxymoron.
Above and beyond whether a SCOTUS judgement on the election legitimacy/results would convince more people that the election was fair and valid is the fact that it would be on the record from the nation’s highest court. It would be a powerful statement that the election was indeed valid.
Joe Jersey Doesn’t the Court assume a validity of sorts just by taking up arguments?
By not taking up the argument at all, aren’t they already saying that the arguments are without merit? Also, their rejection shows a high regard for the lower courts’ decisions? CBK
True. My premise was that if the court did decide to take up such a case, it would be big, not inconsequential. Big if. Who knows how Clarence Thomas would vote since his wife is a Trumpy?
Joe Jersey Yes, if the Court did take up the arguments, it WOULD be big and consequential, regardless of their final decision. However, it would also be “taking the bait.” And either way, it might even put the final nail in the coffin of democracy.
They had the presidency and they think they can get it back; they have open movements of power in Congress and in State governments; they are working on the Pentagon. What’s left but the Courts? CBK
Democrats need to increase their margins in Congress so that no one Senator holds the balance of power.
Biden controls the Pentagon.
Diane Yes, a strongly democratic Congress so the margins and single-obstinate senators cannot give us all heart failure.
I think also that ALEC and others have snuck one in on us over the last several decades.
I have to admit also that I was late to recognize how deeply ingrained the racial issues were . . . as is evident in the present multi-state push for voter suppression. I knew it was there (I have family . . .); but I didn’t connect it up with white fear of losing a WHITE democracy to black voters . . . apparently enough to throw away democracy itself.
We must ask, where is K-12 education in all of this? CBK
The fact that the Court refused to hear three different Trump “fraud” cases leads me to believe that if they did, Trump would lose decisively. As they did in every state and federal court, losing even in courts where Trump appointed the judge.
By not taking up the argument at all, aren’t they already saying that the arguments are without merit?
Maybe and maybe not.
One can make a pretty good argument that by refusing to take up arguments , the court often simply dodges issues.
SomeDAM Yes, in some cases I am sure the Court sidesteps for other-than-admirable reasons.
But in this case, I think they were right in doing so. Also, I’m not a lawyer, but I think that there is the matter of precedent . . . they don’t take cases that are obviously without merit. Any lawyers out there . . . ? CBK
Bug I refuse to take up that argument.
If the Ex’s loyalists don’t believe the virus (and his inaction) killed 500,000 people, they’re not going to care what the Supreme Court says. The only possible people who could verify the truth to these people are Republican leaders. McConnel said the Ex’s behavior on Jan 6 was deplorable but he hasn’t said the vote was legitimate.
What we do need is what Kevin McDermott (St. Louis Post Dispatch) wrote in an editorial today about Senator Roy Blunt, #4 in the party and declaring he’s not running.
“… at any point in his tenure… Blunt could have walked up to any microphone… and said what he knows is true: This isn’t who we are. As a party, or as a country. Acceptance of this ignorant, corrosive sociopath of a president isn’t a valid trade for tax cuts and judges. It’s a selling of the soul, and I won’t do it anymore.”
He could have said it but didn’t nor did any of the bona fide Republicans who sold their souls, reputations to the ex-president. They may not answer to us, but will have to face their grandchildren when they ask, “What did you do then grandpa?”
Kevin McDermott is terrific.
If Supreme Court justice Scalia was raised from the dead and declared Biden the president, a large portion of the electorate would reject his pronouncements.
I await evidence that our justice system will work to settle once and for all… that TRUTH EXISTS.
The Supreme Court would not be accepted as the last word on the election because they lost their credibility over the past 21 years.
Regardless of their past, terrible rulings; I can’t see the Supreme Court ruling anything other than a complete validation of the election results. The storming of the Capital building was too serious an offense. It went waaay beyond party politics.
And, although it won’t make a difference to the majority of Trump’s loyalists (“Yeah…well what about…” will always win the day, there), I do think it will sober up enough who still have their wits about them. Enough to possibly make a difference in the next congressional and presidential election primaries.
Well written, Diane. I hope it gets published.
Agreed.
Even Supreme Court Justices like Thomas and Ka_anaugh have their limits and don’t wish to be perceived as supporting a “Shaman” who looks like he just emerged from a paleolithic cave.
By the way, the “_” is so the comment did not go into moderation.
In the past, the Happiness Engineers at WordPress have flagged comments including Ks name
Appreciate the spirit of your proposal but I have my cynical doubts. Remember, Roberts wouldn’t even sit for the impeachment trial about Jan 6 and the GQP attempt to overthrow the election. If forced it appears the Courts looked at all Trump’s fraud around the election as unsupportable but I expect they’ll do everything they can to stay out of the fray and let voter suppression and such continue. This pending decision about the Voting Rights act appears to be their next big inescapable test. I wish a felt more hopeful about even that. As always, thanks for your voice in support of public education. Best, Jack
In 61 out of 62 post-election lawsuits filed by Trump’s allies across the country, scores of federal and state judges rejected those assertions as groundless and lacking proof.
I am not sure that one more case can be found that the Supreme Court would consider. I am not a lawyer, but a case, if found, must be eligible for the Supreme Court.
“The Constitution limits the Court to dealing with “Cases” and “Controversies.” John Jay, the first Chief Justice, clarified this restraint early in the Court’s history by declining to advise President George Washington on the constitutional implications of a proposed foreign policy decision. The Court does not give advisory opinions; rather, its function is limited only to deciding specific cases.
The Justices must exercise considerable discretion in deciding which cases to hear, since approximately 7,000-8,000 civil and criminal cases are filed in the Supreme Court each year from the various state and federal courts. The Supreme Court also has “original jurisdiction” in a very small number of cases arising out of disputes between States or between a State and the Federal Government.
When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.”
Source: https://www.supremecourt.gov/about/constitutional.aspx
Meanwhile Republicans are hell bent on suppressing the vote through federal and state legislation. As an example, my own representative, Brad Wenstrup and 62 other Republicans have co-sponsored H.R. 322, 117th Congress. This bill continues Trump’s myth that there was widespread election fraud. The bill has gained support (as of March 15, 2021) from 63 Republicans in the House of Representatives. That is about a third of House Republicans and 13 co-sponsors are recent additions.
The bill would amend the National Voter registration Act of 1993 https://www.justice.gov/crt/national-voter-registration-act-1993-nvra
and the Help America Vote Act of 2002 https://www.eac.gov/sites/default/files/eac_assets/1/6/HAVA41.PDF
in order to “promote integrity in voter registration, vesting of ballots, require the repeal of a federal privacy law, mandate the use of social security identification or a passport for verification of voter identity, reduce federal oversight of federal elections,” and more. The repeal and amend sections of the bill, if enacted, would have the effect of giving election officials in each state a data-base of personal identifications now off-limits for political use.
Adding insult to injury, the bill is called the “Save Democracy Act.”
Laura “Save Democracy Act.” Now THAT’S rich.
But thank you for bringing this research to the site. CBK
The one case that the Trump legal team won was not about fraud—for which there was no evidence—but about how close poll watchers could stand to the vote counters. Pennsylvania.
Laura-
Peter Thiel put $10,000,000 behind J.D. Vance’s candidacy for Portman’s position. Vance wrote Hillbilly Elegy, a political ad for himself that was presented as a book. Vance is like Hawley and Cruz, an Ivy League populist.
My opinion -a corrupt Republican who isn’t owned by the richest 0.1%
is less dangerous than one who is.