'Wild-eyed theory' gaining support among conservative Supreme Court justices poses grave threat: Legal expert

The biggest threat to American democracy isn't a military coup -- but from the U.S. Supreme Court , according to one legal expert.

Gen. Mark Milley, chairman of the Joint Chiefs of Staff, feared former president Donald Trump might orchestrate a "Reichstag moment" to retain power after his election loss, and he and other military leaders resolved to stop any such action, but Los Angeles Times legal affairs columnist Harry Litman published a new piece explaining why the government's own judicial branch poses an even greater threat.

"A constitutional theory is gaining ground at the court that could theoretically have awarded the 2020 election to Donald Trump, despite his having been swamped at the polls," Litman wrote. "Its basis is an obscure and muddled argument that first surfaced when the Supreme Court stepped into the George W. Bush-Al Gore 2000 presidential contest and stopped a state-court ordered recount in Florida."

Chief Justice William Rehnquist was joined by Antonin Scalia and Clarence Thomas in a separate opinion in that case, which found the court could intervene in election disputes when congressional rules were a "significant departure" from a "legislative scheme." The precedent could allow justices to strike down results that they believe depart from the legislative intent.

"This is a wholly wild-eyed theory," Litman argued. "Its chief flaw (there are others) is that it ignores the fact that the U.S. Supreme Court had neither the authority nor the expertise to pronounce a state court ruling a 'significant departure' from a state legislative scheme. The Supreme Court interprets federal law, not state law. Anything else runs roughshod over core constitutional principles of federalism."

Justice Brett Kavanaugh and Justice Samuel Alito have signaled their agreement with Rehnquist's opinion, and Thomas penned a dissent in a Pennsylvania case that challenged Joe Biden's victory, which the Supreme Court might have essentially overturned if the election was tossed back to the Republican-dominated state legislature for a do-over.

"This is the kind of legal coup Trump conjured when he tweeted on the morning of Jan. 6, 'All Mike Pence has to do is send them' — the election results — 'back to the States, AND WE WIN,'" Litman wrote. "It would also have been the endgame of the attempt by a Trump loyalist to strongarm the Department of Justice into disparaging the election results in Georgia."

"A wave of lawsuits would have followed," he added, "and the Trump forces could have dressed up their treachery with the Rehnquist argument, potentially empowering state legislatures in the president's thrall to defeat democratic rule."