President Donald Trump refused late Friday night and into Saturday morning to admit defeat after the U.S. Supreme Court scuttled a case he touted as critically important to his dreams of winning the 2020 election. A volley of Trump tweets attacking the Court began shortly before midnight and included a rather stilted reading of what actually happened when the court tossed the case.
The tweets included a piece by conservative commentator Todd Starnes that thanked Justices Samuel Alito and Clarence Thomas for issuing a “statement” partially against the court’s decision to slap down a pro-Trump lawsuit. The litigation was attempted on behalf of the State of Texas by its indicted attorney general, Ken Paxton, against several key states where President-Elect Joe Biden won the popular vote. The Alito/Thomas statement — which Starnes (but not the justices themselves) described as a “dissent” — said the court should have permitted Paxton to actually file his case because it fell within the court’s original jurisdiction to hear lawsuits between states. Critically, both Alito and Thomas said they “would not grant other relief” sought by Paxton. The pair said they “express[ed] no view on any other issue.” Though the Alito/Thomas statement has been criticized by lawyers for being imprecisely written, the consensus is that Paxton would have have lost after filing his case under the Alito/Thomas view rather than not being allowed to file it at all under the majority view of the other seven justices. Naturally, Starnes’s piece, which Trump tacitly endorsed, slammed justices Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh for remaining “silent” in the litigation.
Trump had earlier attempted to join the Paxton litigation as an intervenor.
The president then parroted an incomplete take by Sean Hannity on what Alito and Thomas did:
“Justices Alito and Thomas say they would have allowed Texas to proceed with its election lawsuit.” @seanhannity This is a great and disgraceful miscarriage of justice. The people of the United States were cheated, and our Country disgraced. Never even given our day in Court!
— Donald J. Trump (@realDonaldTrump) December 12, 2020
Notably, the tweets said nothing of the portion of the Alito/Thomas statement which indicated those justices “would not grant other relief” to Paxton, Trump’s ally. The strange and arguably misplaced singling out of Alito and Thomas as praiseworthy justices drew its own criticism from Georgetown Law Prof. Josh Chafetz:
Trump’s attacks on the Supreme Court began just before midnight Friday.
“The Supreme Court really let us down,” the president tweeted. “No Wisdom, No Courage!”
The Supreme Court really let us down. No Wisdom, No Courage!
— Donald J. Trump (@realDonaldTrump) December 12, 2020
A few minutes later, Trump said he only “purportedly lost” the election:
So, you’re the President of the United States, and you just went through an election where you got more votes than any sitting President in history, by far – and purportedly lost. You can’t get “standing” before the Supreme Court, so you “intervene” with wonderful states…..
— Donald J. Trump (@realDonaldTrump) December 12, 2020
….that, after careful study and consideration, think you got “screwed”, something which will hurt them also. Many others likewise join the suit but, within a flash, it is thrown out and gone, without even looking at the many reasons it was brought. A Rigged Election, fight on!
— Donald J. Trump (@realDonaldTrump) December 12, 2020
Trump then joined laments from other Republicans that the courts were not taking up elections cases on their merits but rather were dismissing the filings on procedural or other legal grounds:
The missives went on Saturday morning with references to Georgia GOP promises to dig into what happened in that state. Trump then retweeted comments by Press Secretary Kayleigh McEnany, who said on Fox News the Supreme Court of “dodged,” “hid behind procedure,” and “refused to use their authority to enforce the constitution.”
Trump then went on to repeat his claim that he “won . . . in a landslide” and suggested that Biden’s occupancy of the White House was an “if,” not a “when.”
Trump again circled back to the issue of legal standing while pummeling the court’s alleged disinterest in the merits of the litigation launched either by his own attorneys or their allies.
Sen. Ben Sasse, a Nebraska Republican, joined the chorus of those who told Trump to pipe down. Sasse called the election lawsuits “nonsense” and reminded Trump that his own three Supreme Court picks tossed his case.
[image via Alex Wong/Getty Images]
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