See-Nothing, Do-Nothing Judiciary Unleashes Dred Scott 2020

‘Republicans have lost more than 50 court cases” relating to election fraud and illegalities, parrots the traditional media ad infinitum and gleefully. CNN crows of “desperate appeals and baseless conspiracy theories.”

But the burgeoning legal body count is no indicator of legal incompetence, flight of fancy nor quixotic stubbornness. Rather, it’s a measure of the American judiciary’s historic failure at all levels to protect the integrity of the electoral process, defend the Constitution, and ultimately, perhaps, preserve the union.

“Do you think we’re stupid?” Trump legal team leader Rudy Giuliani queried plaintively as the vote heist unfolded.

No, Mr. Mayor. Your well-organized opposition doesn’t think you’re not stupid. But does think – nay, knows – you’rehelpless.

Helpless on short notice to expose and counter the near-perfect crime Democrats orchestrated over months of war-gaming and legal positioning.

Helpless against traditional media ranks closing around Joe Biden and outright taunting the president. (One national anchorman recently tossed off that The Donald “refuses to admit he has lost.” “Refuses” connoting pigheadedness, “admit” a deprecatory form of the more traditional “concede,” and “has lost” a conclusion the blow-dried Ron Burgundy-type was not yet in position to draw.)

Helpless against rules rigged outside legal and constitutional frameworks amid pandemic panic, some with acquiescence of spineless, brain-dead Republican officials.

But most of all, helpless in the face of the high legal mountain to climb.

That mountain consists, first of all, of the need for “clear evidence” of irregularities sufficient to overturn the result. In fact, the Trump team is hamstrung by mindless repetition of the talking point alleging “no evidence” at all of election fraud. 

Oh. You mean “no evidence” like thousands of pages of election worker affidavits? Like refusing bipartisan access to vote counting? Like tossed absentee envelopes? Like constitutionally impermissible variances in intrastate review standards?

Like the statistical impossibility and suspicious timing of near-simultaneous vote dumps across four states almost unanimously in favor of one candidate? Like video evidence appearing to show officials pulling out hidden ballots after dismissing observers?

Or even like the executive branch amendments of election laws, constitutionally required to be established only by state legislatures, and passed expressly to prevent the exact frauds that may have eventuated? 

You mean that kind of non-existent “evidence?”

Meanwhile, in the words of one prominent legal blog, there’s judicial “reluctance to wade into post-election litigation” on the part of the Supreme Court in particular – still institutionally burned by fierce leftist reaction to appropriate intervention in Bush v. Gore.

Yeah? Where, pray tell, was the Supremes’ “reluctance,” for example, to disenfranchise majorities affirming traditional marriage in 31 sovereign states?

“Reluctance” to baldly rewrite federal law creating a cause of action for transgender funeral home employees cross-dressing in the presence of grieving families?

Or “reluctance” to step in and recast a penalty as a “tax” to preserve an otherwise unconstitutional enactment?

Suddenly “reluctant” courts hide behind procedural dodges to avert their duty to ensure a credible and lawful electoral process. As if “laches” – mere delay in bringing a suit – overrides basic questions of constitutionality. And a state has no standing – “judicially cognizable interest” – in challenging unconstitutional actions, including potential violations of federal law, that negate the actual national presidential results to which their citizens’ votes contributed.

Not to mention another outrageous Catch 22: wrongdoings – no matter how egregious – that cannot be shown without further investigation to be large enough to change outcomes must be ignored. But if they are massive in extent, then relief shouldn’t be granted that “disenfranchises” so many voters – even if their “votes” are illegal or non-existent.

BTW, since when is a theft’s size a reason to excuse it? “Bernie Madoff stole $65 billion? That’s so much money it would be unfair to take it away from him.” C’mon, man. Here, we’re only talking about purloining the entire presidency.

It would have been little skin off various courts’ backs to allow suits to advance, facilitating discovery and deposition of officials involved in suspicious activity and potentially, even disproving charges of fraud, thereby instilling greater confidence in the result one way or another.

Instead, the Supreme Court’s two punts this week unleash Dred Scott 2020 (without the racial overtones). Like the original, they will inflame tensions and potentially, create further momentum toward America’s sundering.

And make no mistake, that momentum is growing. More commentators, even legends like Rush Limbaugh and Pat Buchanan, bring it up daily. One anonymous pundit actually proffers an intriguing scenario, a red county-led separation, that would leave this correspondent on the wrong side of the divide – in a Republican state but one of America’s bluest local jurisdictions.

More important, Texas’ now-spurned lawsuit provides a potential stepping stone: 18 states are now on record alleging a stolen presidency. From there, it’s only a hop, skip and a jump to the Declaration of Dissolution previously suggested in this space.

The judiciary, most notably the high court, could have helped avert that outcome. Instead, in the words of a previous president, the justices could join scorned Roger Taney not just on the wrong side of the coming split, but on the wrong side of history.