It depends on how much Harris can run up the score.
Three things are true about the current, Republican-controlled Supreme Court.
The first is that, in 2020, when outgoing President Donald Trump was pushing his fellow partisans on the Court to overturn his loss in that year’s presidential race, the Republican justices didn’t do it. Despite everything this Court has done before and since to undermine democracy and write Republican policy proposals into the law, even these justices balked at joining a coup. Joe Biden won by a sufficiently clear margin that even this Court didn’t question his victory.
The second truth is that, in 2000, when the election was much closer and turned on the outcome in a single state, the Court did hand Republican George W. Bush the presidency in Bush v. Gore. All five of the justices who typically voted for outcomes favored by the GOP were in the majority in Bush, and all four of the justices who typically favored the Democratic Party’s goals were in dissent. The majority’s reasoning was widely mocked, in no small part because it seemed to abandon longstanding conservative principles in order to achieve a partisan end.SCOTUS, Explained
Get the latest developments on the US Supreme Court from senior correspondent Ian Millhiser.
And then there’s a third reality about this Court: In the past year, the Court has gone out of its way to protect Trump from the legal consequences of his behavior.
Last March, after the Colorado Supreme Court ordered Trump removed from the ballot based on a very persuasive argument that, by inciting the January 6 insurrection, Trump violated the 14th Amendment’s ban on high officials who “have engaged in insurrection or rebellion against” the United States, five Republican justices effectively neutralized this provision of the Constitution for the duration of the 2024 election.
Similarly, the Court’s opinion in Trump v. United States (2024) gave Trump broad immunity from criminal prosecution for crimes he committed while in office. The most astonishing part of the Trump immunity case held that, if he is returned to office, Trump may give any order he desires to the Department of Justice — even if he orders federal law enforcement to act “for an improper purpose” — and Trump would be immune from criminal consequences for giving these orders.
Meanwhile, Trump is openly campaigning on having his political rivals arrested. He even suggested that critics of the Republican Supreme Court “should be put in jail.”
Right now, polls show the race between Trump and Vice President Kamala Harris to be more or less a coin flip. On Election Day, the country could easily find itself in another Bush v. Gore situation. And, if Trump loses, his behavior after his 2020 loss suggests that he will eagerly petition a GOP-controlled Supreme Court to undo the will of the voters.
The only uncertain question is whether these justices would join him in a second effort to overthrow the results of a presidential election.
