The Supreme Court was never going to overturn state-certified election results. Even as Justices Clarence Thomas and Samuel Alito wrote dissenting opinions seeking essentially advisory decisions to guide future elections, the court cases concerning the 2020 election were never going to change the outcome of the 2020 election. As I wrote on December 1, “Absent a state legislature’s vote to set aside a compromised result, I do not foresee the U.S. Supreme Court ruling to change the results.” When the state legislatures failed to do so, it was over.
The Supreme Court lacks the infrastructure and moral authority to second-guess state-level certification decisions. The state legislatures weren’t willing to challenge the results in their own jurisdictions and it’s totally unfair to expect a few Washington D.C.-based justices to flip the results. If the evidence was there, the legislatures should have developed it in public hearings and voted to invalidate the results.
Would we want it any other way? State legislatures are accountable to voters. They can be voted out if they improperly cancel an election result that reflects popular will. A Supreme Court justice is not reachable by the voter. If we advocate judicial supremacy over election outcomes, the other side will be more than happy to use those tools for power. Democrats would gleefully seize on that precedent to invalidate future Republican victories. The long run of a Supreme Court staffed with a majority of Republican appointees eventually will come to an end.
In the early days following the election, the outlandish actions of Sidney Powell—an apparently self-appointed election-fraud watchdog—sucked the oxygen out of the room from discussion of legitimate questions about election irregularities to promises of slam-dunk “krakens.” While the tech giants should be faulted for suppressing those questions, Powell’s antics played an indispensable role in deflecting attention from real irregularities. The tech companies couldn’t have done what they did without Powell staging her carnival show distraction.
Powell promised the public a smoking gun of election fraud. Powell’s allegations turned out to be lots of smoke but no gun. She claimed to have inside knowledge that the Dominion voting systems altered actual votes. When the Georgia hand recount pretty much matched the electronic tabulation by Dominion, it became too late to retreat to the more rational but less-sexy arguments about illegal changes to mail-in vote rules or invalid signature authentications.
I have been a Powell skeptic for some time. Fans know that I am a frequent critic of the Department of Justice and its subordinate agency, the FBI. I read Powell’s book, Licensed to Lie, which chiefly concerned the government’s prosecutorial misconduct in both the Ted Stevens prosecution and the Enron case. While both cases clearly involved prosecutorial misconduct, Powell’s account tends to rely on lots of moral outrage and generalizations instead of a careful recitation of the facts.
Similarly, I read through many of her court filings in the Michael Flynn case and found the same thing. Powell would carry on for pages and pages about details of a vast conspiracy that often had no clear connection to the specific injustices involving Flynn. Powell seemed to be writing for the titillation of Sean Hannity fans rather than the presiding judge. Her oral argument to the court of appeals was unfocused and poorly articulated.
In the end, Powell achieved the result that can usually be expected from needlessly antagonizing the presiding judge: a less-than-favorable outcome for her client. While Powell floundered, Flynn saw some relief only after Attorney General Bill Barr appointed an attorney to audit the entire prosecution.
When Powell started holding press conferences after the election, conservatives within the legal community quietly wondered whether she had the necessary expertise in the highly specialized field of election law. Powell snatched the headlines away from legitimate inquiries at the state legislatures in Pennsylvania, Michigan, and Arizona. By drawing all the attention to the court system, Powell gave the politicians in the state legislatures the political cover they needed to drop the hot potato of potential election fraud.
Now Powell faces a massive lawsuit by Dominion voting systems. Based on her inability to backup her spectacular conspiracy claims, it doesn’t look good.
Conservatives don’t have the luxury of indulging allies like Powell. There’s no massive media network to make conspiracy theories, like the Russia collusion hoax, seem credible for our side. When conservative claims turn out to be unsupported, they’re exposed to consequences. While one rightly admires those who fight against the leftist corporate media narrative, conservatives cannot afford the cost that comes with following a charlatan. Powell did more to delegitimize questions about the Biden election victory than did Facebook, Twitter, and Google combined.
We can’t expect the Supreme Court to make up for the legal ground game in the state legislatures that Powell’s showboating undermined. The conservative justices are clearly sympathetic to the plight of the Trump voter. But they needed the legitimacy of a state legislature acting against the outcome in order to take concrete action. If Trump voters want to be angry with somebody, they should look back to what was done in November and December. After that, it was too late.