Supreme Court: Why Republican judges rejected Trump’s election theft - Vox

Supreme Court: Why Republican judges rejected Trump’s election theft - Vox

By Ian Millhiser

"....In From Jim Crow to Civil Rights, Harvard Law professor Michael Klarman lays out a useful framework for understanding how politics shapes judicial decision-making. Such decision-making, he writes, “involves a combination of legal and political factors,” and “when the law is clear, judges will generally follow it, unless they have very strong preferences to the contrary.” In cases where the law is “indeterminate,” by contrast, judges will generally make political choices because they have nothing else to go on. But if existing law requires a particular outcome, only the most political judges are likely to disregard it.

One sign that the law was not on Trump’s side is that the sort of high-powered Republican lawyers who would ordinarily represent a GOP president in a case of national importance largely sat out the post-election litigation. Instead, Trump was represented by the sort of lawyers who would hold a press conference in the parking lot of a landscaping company. At one court hearing, Trump attorney Rudy Giuliani admitted that he did not understand the term “strict scrutiny,” a basic legal term that is taught to all lawyers during their first semester of constitutional law. And Giuliani was only in court in the first place after several of the Trump campaign’s lawyers abruptly withdrew from a case.

As it turned out, many of Trump’s lawsuits involved small-potatoes claims that wouldn’t matter very much even if Trump did prevail. Or they involved speculative claims of wrongdoing based on minimum evidence, or some combination of the two.

To give one example, a suit filed by the Trump campaign in Georgia alleged that one of the campaign’s poll watchers observed an election worker place a stack of 53 ballots on a table. The poll watcher then left the room, but when he came back, the stack of ballots was gone. And this was somehow evidence that the state might be improperly counting ballots.

Even setting aside the fact that there are any number of legitimate explanations for why these 53 ballots were moved, Biden won Georgia by nearly 12,000 votes. So this small stack of ballots wouldn’t have changed the result even if they were improperly counted...."