Democrats dubbed it the American presidential “selection”. Back in 2000, the US Supreme Court stated that its 5-4 decision to halt Florida’s recount that handed the 2000 election to George W Bush — was meant to be a one-off. Twenty years later it looks like a troublingly relevant precedent.
The risk that robed lifetime appointees will resolve next week’s election is neither trivial nor probable. It lies somewhere in-between.
Common sense dictates that in a contested election between Donald Trump and Joe Biden, the Supreme Court’s instinct would be for self-preservation. In a tight electoral college count where Mr Biden had won the popular vote, another court “selection” could break its legitimacy. The risk to the court’s independence of settling in favour of Mr Trump would be high. The White House is up for grabs every four years while Supreme Court appointments are for life.
Amy Coney Barrett, who was confirmed this week, could occupy the bench for decades, which means conservatives can probably count on a judicial majority for many presidential terms. Why gamble with such rich winnings? That is why most constitutional scholars believe the court will do its best to avoid intervening in the 2020 election. But survival is not the only instinct.
One clashing impulse would be to prevent a constitutional breakdown. It is possible Mr Biden will win Florida on Tuesday night and end all speculation. Failing that, the chances of a rash of court battles over vote counts is high. The Supreme Court has ruled on cases involving four states in the past month alone. In cases on South Carolina and Wisconsin, it ruled to make voting harder. Although it upheld Pennsylvania’s three-day extension for postal ballots, the court left itself wiggle room to return to the issue next month. The justices also let stand North Carolina’s extension for mailed in ballots to nine days.
The stated logic behind some of these rulings have not been reassuring. Brett Kavanaugh, who was confirmed in late 2018 as the second of Mr Trump’s three appointments, cited the previously off-limits Bush vs Gore ruling in support of a ruling to stop a deadline extension for Wisconsin’s mail-in ballots.
In the South Carolina ruling, which mandated that postal ballots had to have a countersignature, he likewise argued that decisions by state legislatures “ordinarily should not be subject to second-guessing” by federal judges. Most swing-state legislatures, including Florida, Wisconsin, Michigan and Pennsylvania, are Republican. Should any one of these override their state’s popular vote and pledge their electors to Mr Trump, Mr Kavanaugh has made his sympathies known. The same applies to at least three of his colleagues. Ms Barrett could make a majority.
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Three of the nine justices — Chief Justice John Roberts, Mr Kavanaugh and Ms Barrett — worked on George W Bush’s Florida legal team. Time does not lessen the 2000 Supreme Court ruling’s capacity to startle. To justify its decision, the court cited the equal protection clause of the 14th amendment that was adopted after the US civil war to put African Americans on the same legal footing as whites. Antonin Scalia, one of the majority judges, later described that rationale as a “piece of shit”.
The late Mr Scalia is the patron saint of the originalist doctrine to which much of the court now subscribes. In theory, originalism is about sticking to the letter and intent of constitutional text — or “calling balls and strikes” as Mr Roberts described it. In practice, originalist interpretations are often redolent of French deconstructionism.
In recent years, the court has issued several rulings that have made voter suppression increasingly easy. It gutted the 1965 Voting Rights Act in 2013 on the grounds that protecting minority rights was no longer necessary. As the late Ruth Bader Ginsburg said in her dissenting opinion, it was “like throwing away your umbrella in a rainstorm because you are not getting wet”.
Asked repeatedly during her confirmation hearings about how she would deal with any appearance of impropriety that would result from her ruling on election cases, Ms Barrett would only commit “to fully and faithfully applying the law of recusal”. Given that she was hurriedly confirmed a week before the election and sworn in by Mr Trump within hours, it is not clear what that means. Under a conservative reading of the language originalist judges use in their opinions, many things are possible in the coming weeks.
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