The American Republic, not content with having one election decided by nine unelected officials (Bush v. Gore, circa 2000), is gearing up yet again to have its Grand Prize, its esteemed (and very expensive) presidential election, decided by another unelected jurisprudential posse – the Supremes, all the better now for having replaced one punchy acronym RBG with yet another, ACB. Behold the republic, which venerates these esteemed Reviewers of Legislation and Settlers of Political Disputes. The Republican Party–including all its supposed moderates, centrists like Lisa Murkowski and Susan Collins–has already announced that it is committed to a ‘peaceful transfer of power,’ a state of affairs entirely compatible with a Supreme Court decision that awards the election to Donald Trump. This is a nation of laws, not men, and it is laws, not men and women, adult voters, that is, that will decide the fate of the American Republic. And some cherished, hoary theories of legal interpretation, all the better for having being vetted, and found suitable by the finest legal minds of this nation, produced by those bastions of political rectitude, Yale and Harvard.
Let’s face it; wouldn’t you want the fate of our great nation decided by people who have attended expensive prep schools, Ivy League colleges, and scored 180s in LSATs, rather than your average soccer mom, diner patron, rust belt worker, laid off disgruntled corporatist, and sundry other elements of that flotsam and jetsam known as ‘the American voter’? Why trust the voice of the people when you can trust the voice(s) of the Inner Chamber of Constitutional Deliberation?
America is going to go down 3-6; that much is foretold. The scoring will be opened by the Conservative Bench, and despite some valiant counterattacks and equalizers scored by the Ostensibly Liberal Bench, the Conservative lead will not be overcome when the referee blows his whistle. It was a good and valiant battle, but it was always fatally undermined by a historical amnesia, a wallowing in a misremembered past, one that insisted its Constitution was a masterpiece of political and moral spirit, as opposed to recognizing that it was a Rube Goldberg contraption destined to fail precisely when the slightest amounts of stress were placed on it, one reliant on norm-following by flawed humans. Those flawed humans are here, and they do not care to follow these precious norms.
But we will have the satisfaction of knowing that power was transferred peacefully, that briefs were filed, following the requirements of Federal Procedure, carefully specified in large tomes and treatises, intricate legal arguments were made, all the while extensively footnoted. Then some young bright law clerks, all of them recipients of that greatest prize of all, the Supreme Court Clerkship, will produce a gleaming 300-page ruling in PDF, that will certify the result. This PDF will be duly examined by the SCOTUS Blog and by many professors at our finest legal academies. Some might cluck their teeth at the reasoning on display, but their angst will never manifest itself in a rush to the barricades. The law will have triumphed, and the order and decorum of the republic will have been preserved. Even if the republic itself will not have been.