President Trump has spent weeks making increasingly undisguised pleas to the Supreme Court to hand him the election. He has predicted the election will be decided by the courts (“This scam that the Democrats are pulling — it’s a scam — the scam will be before the United States Supreme Court”) and demanded that Amy Coney Barrett should be seated in time to make a favorable decision on his behalf.
Around 3 a.m., Trump made an especially revealing plea directly to the Supreme Court’s justices:
This is a classic Trump appeal, formulated in terms of self-interest, which is the only form of motivation he believes humans are capable of acting upon. Trump is arguing that the Court should rule in his favor, because if Joe Biden wins, he will dilute the power of its incumbent members — either by packing the courts, or by implementing a reform that would rotate federal judges through the Supreme Court.
As Trump appeals go, this one isn’t bad. Biden probably won’t have the votes to pack the Court or even to implement a more modest reform. But he does support reform, and has promised to appoint a bipartisan commission to formulate a plan of action. So a Biden election certainly creates real risk for the Supreme Court.
But Trump’s argument also implicitly concedes that the Supreme Court has an interest in his election. That is in fact his entire point. Looked at from the opposite end, Trump’s claim can be seen as a confession that the Supreme Court has a serious conflict of interest that prevents it from adjudicating any election case fairly. One candidate is committed to preserving the power of its members, and the other is not.
Trump’s legal and political strategy is to prevent the tabulation of ballots that were mailed before November 3, and to count on Republican-appointed justices to rule in his favor on the basis of their shared interest in locking down a permanent Republican judicial majority. He’s just saying it out loud.