'What it should not do': Analyst warns Supreme Court loophole may let them pick next prez
The Supreme Court left the door open to interfere in the 2024 election in a year-old case that might let them set up another Bush v. Gore situation, Mother Jones' Pema Levy reported Friday.
Critics warn right-wing justices have already put a thumb on the scale by punting any resolution of the federal charges against former President Donald Trump until after the election, while stripping states of the power to disqualify him under the Fourteenth Amendment.
Ironically, the case Levy warns could prove crucial is one celebrated at the time as a victory for democracy: Moore v. Harper.
That ruling saw the Court refuse to endorse "independent state legislature" theory, a far-right doctrine that would have given state legislatures absolute power to block state courts from regulating elections or redistricting, Levy explained.
In turning away that challenge, however, the Court left open the door to overrule state courts when they “transgress the ordinary bounds of judicial review.”
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They have effectively reserved the right to issue another decision like Bush v. Gore, when the Court's right flank shut down a recount in Florida that would determine the outcome of the election in favor of George W. Bush, argued Levy.
Several of the justices currently on the Court served as lawyers in that controversial case, Levy noted.
"In November 2000, John Roberts flew down to Florida to help Bush’s lawyers prepare to argue before the Florida Supreme Court," Levy wrote. "Six months later, Bush nominated Roberts to the DC Circuit Court of Appeals, and in 2005, tapped him to join the Supreme Court as chief justice."
Levy also details another journey of another conservative justice.
"Brett Kavanaugh likewise flew to Florida, where he helped monitor Volusia County’s recount," Levy wrote. "Kavanaugh went on to work in the Bush White House before the president nominated him to the DC Circuit in 2003; he was confirmed in 2006."
Even Amy Coney Barrett, younger than all of them, did legal research for the Bush team's law firm, according to Levy.
It remains unclear whether the Court will even have a chance to interfere, Levy noted, but there are a couple of disputes that might prove critical — in particular, challenges by the GOP on how absentee ballots are counted in battleground states Pennsylvania and Nevada.
"For some on the court, Bush v. Gore is a reminder of what it should not do," concluded Levy. "For other justices, it may now be a roadmap for what it could do."