A serious 14th Amendment Adios to 126 GOP Congresscritters

Trump fully intends to wedge an election victory from the Supreme Court. But unless he does actually win an election victory via the electoral college, they will not give it to him. The Supreme Court will not “steal the election for him.” The justices do not live in a political vacuum, nor a social one. They know how toxic he is, and they will not give him the election unless it is truly his. They actually hold the levers of independence. Though 3 of them will have been nominated by him, they are in no way beholden to him. Of the 3 branches, the Judiciary is the most at liberty to serve the constitution. The constitution is their primary constituency. 

If Biden does fairly win the election per the electoral college, the Supreme Court will recognize that, and Swear Biden in as the next president. That will be fine. A conservative court can then serve as a stabilizing branch to an otherwise runaway liberal elected majority.

The Democrats will have control of the House of Representatives, and in all likelihood, also the Senate. I’m expecting a senatorial bloodbath for the GOP. With Joe Biden as President, that seems to turn over the whole federal government to the Democrats, granting a license to implement any agenda they wish. And but for a conservative Supreme Court, that might well be so. But not so with a conservative (GOP dominated) Supreme Court. 

But the court is supposed to be apolitical!! Yeah - hogwash. For Trump to send the election to the SCOTUS is just begging it to declare its independence by deciding against him. The court hates being dragged directly into politics. The justices will resent him putting them in that blatantly political position. They will even further resent him putting their institution in that ugly position. If he does that, and there is any way for them to justify deciding against him, they will do so. But 2 things here. First, the court needs to maintain elevation above the political fray. It needs - and we all need it - to hold politics at a long-arm’s reach. Again, the court needs to serve the constitution, not politics. Second - in this twisted, explosive Trump driven situation, the court desperately needs - for itself - for legitimacy of its own role - to demonstrate its independence from the nominating executive branch. In this case, that branch happens to be Trump. For the actual AND perceived legitimacy of the court, it needs to prove it’s not just another Trump whipping boy like the elected GOP has agreed to be. For that reason alone - IF there is any legitimate doubt they can seize on as to “who won the election” - IF they have the opportunity to “choose who they think won,” IF they have any legitimate opportunity to actually “decide” the election over and above “recognizing the election,” IF they’re going to “steal the election” and then “give it to” anyone - they’re going to give it to Biden and the liberals, not the conservatives who nominated and confirmed 3 deciding members. 

First, they will honor and serve the rule of the constitutional law. In doing so, they will loudly and clearly assert the political independence of the Judiciary. In the need to do that - as SCOTUS justices, they have to be hoping for a legitimate Biden win, challenged by Trump all the way to SCOTUS, so that they can demonstrate political independence, re-legitimizing perception of the SCOTUS. 

Then - a Democratic legislative and executive can be held to that same constitution by a more originalist leaning court. The “Balance” remaining in “the power” will be the balance of a conservative court balanced against a liberal everything else - and it will be a balance - not a short term runaway with government by elected liberals. It will offer stability. And stability is HUGE. Just look at any/many if not most countries in the world who do not enjoy stable governance. 

The chief threat to this balance of power is the liberal temptation to pack the court. The liberals have already destabilized the SCOTUS process once in recent history. Under the leadership of Harry Reid (D-Nevada) they reduced the confirmation requirement for SCOTUS nominees from a supermajority to a simple majority. This interjected a whole new level of instability and divisiveness into the SCOTUS related constitutional balance of power. 

Between the liberals and conservatives, either ALMOST NEVER enjoys a supermajority control of the senate. One side or the other ALMOST ALWAYS has a simple majority. I don’t know that the Senate has ever had membership divided evenly between 2 parties, but if so, probably not for more than 1 election cycle. That situation of a 50/50 split in the senate membership is somewhere between rare and non-existent. 

In the case of requiring a supermajority to confirm a SCOTUS nominee, either side would ALMOST ALWAYS have to enlist considerable cooperation from the other side. With a supermajority rule, you could ALMOST NEVER achieve a “party line confirmation” of a SCOTUS nominee. The supermajority rule required - demanded - a much higher bar of cooperation between the sides in order to install anyone on the SCOTUS. 

But opting for short term power and agenda over long term stability in governance, the liberals decided to seize that lever of power. I can only imagine they had a situation where they couldn’t - or didn’t want to - settle for a nominee they could confirm with a supermajority, but they could change the rules to a simple majority, which they enjoyed at the time. So, they changed the rules to snub the conservatives, and used the lower confirmation bar to install who they wanted over conservative objections. But now the shoes are on the other feet and the conservatives get to use that same lower bar to ram through justices of their own choosing. And it ain’t pretty - even for a disenfranchised libertarian to watch. It’s short-term, agenda driven and politically (governance) destabilizing. But that’s what the liberals gave us all on behalf of their agenda. I don’t harbor many doubts that, in a similar situation, the conservatives would have done the same. Whoever would have done it, for whatever reason, it was destabilizing. If stability in government is a weighted value, paths leading to instability (“progress”?) are mistakes. 

The only way to backtrack and correct for that error is to have the majority in power to also have a broad enough, longer term view of stability. They have to value stability enough so that they’re willing to make it harder rather than easier to have their own way while they hold the power. This is next to impossible to achieve. To get anyone in power to actively reduce that power is a remote possibility, even when they fully realize that someone else will have that same power to use against their own positions at some time in the future. It’s the immediacy that gets them and holds them hostage to their own power - hostage from doing the more stabilizing thing – which would be a reduction in power, their own immediate power for now, but the power of the other side when it’s in power too, albeit at a later time. (Ask Harry Reid about that now.)

So, with that all for background: 

Biden wins the electoral college. Trump obfuscates, disrupts, and attempts to delegitimize the process. In the course of doing all that, he challenges all the way to the SCOTUS. He puts the SCOTUS in a position of needing to demonstrate its independence from him, and the lacky conservatives who confirmed 3 sitting SCOTUS members. And the Court will look for every way possible to demonstrate that independence. For Trump to take the election to the SCOTUS is just begging for a backfire situation on his position.

SCOTUS either - (1) merely “recognizes” a clear legitimate victory of Biden, and shows it’s not a conservative Trump puppet, I.E. “demonstrates its political independence,” or, (2) (and even better for the court) there is actually legitimate doubt as to “who won the electoral college and the election,” and the SCOTUS gets to go beyond mere “recognition” and finds itself in the distasteful position of legitimately having to “decide” the election. 

In the latter case, they will decide in favor of Biden - offering an even clearer and stronger declaration of Judicial Independence. They can do this knowing that SCOTUS can serve the constitutional governing stability by way of being the conservative balance to the liberal majority that will then be present in the immediate elected branches of government. 

And that all works - until the liberals try to run away with governance in general by packing the court. In other words, until the liberals refuse to be constrained by constitutional limits and the rule of law. If they do that - they will foster instability in the direction of serious civil unrest of the conservatives, approaching low-grade civil war - armed, dangerous, and violent unrest at best. If the liberals want their short-term goals badly enough to fuel those kinds of instability - that’s where they will point us. 

As a libertarian, I’m a politically oppressed minority. Had I been serious about liberty, had I been one of those “liberty or death” guys, I’d have been dead long ago, because it’s been a long time since there was anything approaching liberty in the United States. If not prior to, then with the passing of the personal income tax, liberty and privacy from government was gone. Can you even imagine that there was a long period in United States history during which there was no income tax and/or the myriad governmental invasions and violations of privacy that come with it? We now presume all that violation as matter of course. At least, all of us who are not libertarian do.

From my point of view, at the end of the day the rest of you are deciding which brand of tyranny I have to tolerate next. You’re all just choosing between your tyrannies and deciding which one I get stuck with. I’m accustomed to that. I’ve lived peaceably with that situation for 30+ of my 60-ish years. 

I’ve settled for peaceful tyranny because I have valued life and peace OVER liberty. Stability of government through a stable rule of law has an awful lot to do with peaceful existence. Our constitutional form of government has been one of the most stable, predictable political forms on the planet. That allows people to plan, to know what the rules are, know the consequences for better and worse, and to make their choices accordingly. 

I’ve chosen not to live under a bridge to avoid paying taxes. I’ve chosen to live with more and pay more tax for the “privilege.” I haven’t liked it. But resistance is death. I understand the rules. I know how that works. Fail to pay the taxes they claim and they will come and take my stuff. Try to resist that, and they’ll kill me, even if I do get a couple of them on the way out, I lose life in the end. Since I’d rather prolong that loss and not spend the interim under a bridge, I pay the pubic extortion. The VAST majority of the rest of you go along with that idea, so that’s the way we have it, and I’m here with it. And I’m doing OK. So far it has been stable and relatively peaceful. That’s worth putting up with a lot. At least I’ve learned to think so. 

However, you do seem to be approaching a juncture where neither brand of tyranny is willing to live peacefully under the other brand. But as a libertarian, I have no dog in that fight. I’ll do my best to live peacefully with whichever tyranny you choose for me. I can only wish the rest of you would do the same. There’s no liberty here. Get over that. If you’d think you were defending liberty - that was gone about 100 years ago, if not earlier. Once you recognize that you’re merely choosing between tyrannies, maybe the adjustment won’t be so bad. Two different brands of tyranny are a lot like 2 different brands of cigarettes. What difference does it really make? They’ll all kill you. Even in our country that applies if you would support your dissent with any action beyond mere words, if you dared trying to live liberty beyond speaking about it. 

Until Liberty, let’s all take care of each other. 

God Bless