How Trump’s Judges Stuck a Pin in the ‘Stop the Steal’ Balloon
On Monday, the last judicial shoe dropped on Donald Trump’s efforts to overturn the 2020 presidential election when the U.S. Supreme Court rejected his third and final high court challenge. As America transitions to a Biden presidency, the court’s ruling exemplifies why the judiciary is our nation’s strongest bulwark against authoritarianism. Indeed, during the biggest threat to our democracy in modern history, the American court system was our last line of defense, proving, as Andrew Jackson once wrote, “All the rights secured to the citizens under the Constitution are worth nothing…except guaranteed to them by an independent and virtuous judiciary.”
When Donald Trump left office in January as a one-term president, he had nonetheless made a vast impact on the American court system. In four years, Trump had appointed 226 justices to the federal bench, including 54 to the appellate court. This latter number is just one justice fewer than Barack Obama appointed to that court in his entire eight years as president. Of the nation’s 13 federal appeals courts, Trump succeeded in flipping three from liberal to conservative majorities. His three Supreme Court justices, meanwhile, were the most appointed in a single term since Richard Nixon. Indeed, Trump’s mark on the American judiciary will be long-lasting and profound.
Which is why it was so significant that Trump’s bogus, execrable claim that the election was “stolen” from him—the “Big Lie” as many have called it—was unequivocally, even contemptuously, repudiated by the courts. In doing so, the American judiciary saved our democracy. That may sound hyperbolic, but in an age so politically volatile that members of the American right wing plotted to kidnap a governor, broke into the U.S. Capitol, and believed the Democratic party was being led by Satan-worshipping cannibals, the judiciary proved our only institution immune to the virulent hyper-partisanship infecting this country. It managed to maintain, if just barely, the legitimacy of both political parties.
But here’s the really interesting thing: It was because of, not in spite of, Trump’s influence on the judiciary that the peaceful transfer of power was ensured. Sound crazy? Imagine if the courts, like Congress and the media, had split along partisan lines—with Democratic appointees ruling against Trump’s election challenges and Republican appointees ruling in favor. Imagine further that no Trump appointees had heard the cases. The right wing, already aflame with conspiracy theories, would have considered the entire process a sham. Worse, a partisan split would have instilled an even deeper sense among all Americans that the country possessed no objective arbiter—that truth was only what our respective political leaders deemed it to be.
Mass insurrection, at the very least, or a Trump coup, at the very worst, would have been the result. The Capitol riot on Jan. 6 was the match ready to light the conflagration.
We were spared these outcomes only because of the bipartisan nature of the court decisions and because Trump-appointed justices heard key cases: in more than 60 post-election lawsuits, a total of 86 judges—including 38 Republican appointees and eight chosen by Trump himself—rejected the election challenges. Even the Supreme Court, with one-third of the justices appointed by Trump, ruled against him. Not a single Trump appointee on any court voted to support his fraud claims.
This clear repudiation had powerful effects. It forced several of Trump’s most high-ranking supporters to finally admit that the election had not, in fact, been stolen. Senate Majority Leader Mitch McConnell had for weeks refused to acknowledge Biden’s win. He referred to him as “President-elect” only after state electors officially voted, which followed the Supreme Court’s refusal to hear a Trump challenge. Even William Barr, Trump’s sycophantic head of the Justice Department, finally admitted in early December, after election challenges were rejected en masse, that there was no evidence of widespread fraud. Reversals like these further delegitimized the “Stop the Steal” movement and threw cold water on pro-Trump groups ready to act on his incendiary claims. (According to the FBI, right-wing militias planned armed protests in all 50 state capitols. They never materialized.)
While many Trump supporters still believe he won the election—according to a January survey, over 70 percent of Republicans believed Trump received more votes than Biden—when confronted with the fact that even Trump-appointed justices rejected the fraud claims, their charges of a Democratic conspiracy became much harder to sell. Two unconvincing explanations landed in my newsfeed: one was that the courts were “mired in the Deep State;” the other was that the judges had been “paid off.” These are ridiculous, of course. Trump-appointed justices could hardly have been more scathing or thorough in their rebukes.
“A sitting president who did not prevail in his bid for re-election has asked for federal court help in setting aside the popular vote,” wrote Brett H. Ludwig, a Trump-appointed District Court judge in Wisconsin. Ludwig called Trump’s election challenge “bizarre” and added, “This court allowed the plaintiff the chance to make his case, and he has lost on the merits.” Steven Grimberg, a Trump-appointed district court judge in Georgia, wrote, “To halt the certification at literally the 11th hour would breed confusion and potentially disenfranchisement that I find has no basis in fact or in law.”
Statements like these helped preserve our democracy because virtually every other American institution that could have checked Trump’s would-be power grab had either been co-opted by Trump or denigrated to the point of near-impotence. The media was “fake news” propagated by Democrats. The intelligence agencies were led by “Obama holdovers” and stocked with Trump-hating members of the “Deep State.” Most Republican congresspeople, meanwhile, publicly supported the bogus fraud claims. It was even unclear how the military would respond to a power grab as Trump had filled key leadership posts with cronies. (Congressional hearings on the Jan. 6 riot revealed that it took the Pentagon more than three hours to approve Capitol Police Chief Steven Sund’s request for help from the D.C. National Guard. Top Army leadership, including the brother of Trump’s former national security adviser Michael Flynn, pushed back against the request, Sund testified.)
On Feb. 13, the U.S. Senate had the opportunity to fulfill its duty as a check on executive misconduct. Days earlier, the House of Representatives had sent the upper chamber its second articles of impeachment against President Trump. This historic second impeachment charged Trump with “incitement of insurrection” for the Capitol riot. House managers argued that Trump had “encouraged and cultivated violence” in order to overturn a free and fair presidential election. Rep. Liz Cheney called Trump’s actions “the greatest betrayal of the presidential oath in the history of the United States.” The Senate voted 57-43 to convict, but that was 10 votes shy of the two-thirds supermajority necessary to do so.
The vote was by no means an exoneration—seven Republicans and two independents joined the majority, making it the largest bipartisan vote to convict in U.S. history—but a conviction would have been an unmistakable deterrent to future presidents who would wield such autocratic tactics. Moreover, the acquittal, like the one following Trump’s first impeachment, emboldened him. On Feb. 17, following weeks of silence, the former president was back in the media floating the same bogus claims that more than 60 court cases had already shot down. In an interview with Newsmax, Trump repeated his fallacious refrain: “It was a stolen, fixed, rigged election.”
But fortunately, in this instance, the president was not the decider. The courts were. And unlike the electorate, the justices were unified in their opinions. As Justice Stephanos Bibas of the Third Circuit wrote in response to a challenge by the president who appointed him: “Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”