Bonus 101: The 2020 Election and the Supreme Court

Should the justices have more affirmatively endorsed the result of the 2020 presidential election? Some reflections on that question as the 2024 election approaches

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For obvious reasons, I’ve been thinking a lot about the upcoming presidential election—and the distinct possibility that the Supreme Court will be asked to play, and might end up playing, a significant role in resolving disputes that might directly affect its outcome. I’ll save for a future issue some of the scenarios through which such a result might come to pass. What I wanted to reflect upon today is an assessment of how the Court did in the 2020 cycle.

Even casual Court-watchers are probably at least loosely familiar with the fact that the Court did very little after Election Day—and repeatedly resisted efforts to get dragged into the claims of fraud and other illegalities from then-President Trump and his supporters. But there was one prominent Court-watcher (and, at that time, regular practitioner), Tom Goldstein, who publicly argued that the Court had an obligation to do more than nothing—to write a unanimous opinion slamming the door on the claims that the election had been stolen and to throw the institution’s full weight behind the legitimacy of President Biden’s victory. Nearly four years later, with former President Trump once again on the ballot, it seems worth asking whether we would’ve been better off if the justices had heeded Goldstein’s pleas.

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