Home / General / Formalist versus realist interpretations of the post-election litigation

Formalist versus realist interpretations of the post-election litigation


I’m actually surprised that the post-election litigation has gone the way it has. While I never expected that litigation to actually lead to a reversal of the results of the 2020 presidential election, if you had told me six weeks ago that:

(1) The election would end up being extremely close in three decisive states, with Biden winning each of those states by margins of far less than one percent: and

(2) Trump would file a mess of state and federal lawsuits challenging the election;

I DEFINITELY would not have predicted that Trump would end up getting completely shut out in court altogether. (I think he’s now something like one for 57 in regard to the rulings coming out of these cases, with the one win being on a minor procedural point).

Just to use the most prominent example, I wouldn’t have predicted that the SCOTUS would give Trump ABSOLUTELY NOTHING, or rather would give him a completely humiliating legal slap down. I mean surely Thomas or Alito at least would file some sort of mumbling semi-dissent from the refusal to take the Texas case, stating that there were “serious questions about the legality and integrity of the procedures used in the 2020 election” that the Court should consider more fully. Something anyway.

But Trump got nothing at all out of either state or federal courts. Why not?

The formalist answer would be that all these lawsuits were just an enormous pile of crap in terms of even the most basic legal rules, and that calling balls and strikes is easy when the pitcher throws the ball straight into the ground rather than tossing it at least somewhere in the general vicinity of the plate.

The realist answer is that at least some of these various state and federal judges who as a political matter very much wanted Trump to win the election still realized that these lawsuits were so preposterous on formal grounds that giving Trump any sort of even partial rhetorical victory (“this litigation raises serious questions about the procedures used” blah blah blah) would do far more damage to the institutional capital of the courts than it would help the long term goals of the American right wing.

My guess is that a lot of these judges consciously think the answer for themselves is the former when actually it was in some significant part the latter. In other words, they would have ruled for Trump, at least in ways that would have given him some sort of partial rhetorical victory, if these lawsuits hadn’t been so totally preposterous that doing so would actually be damaging to these judges’ political goals. But they were.

This could be thought of as the come on man you have to give me something to work with theory of legal interpretation. Still, what surprised me in the end is that giving all these state and federal judges nothing to work with produced literally no legal victories of any kind for Trump, not even of the most partial rhetorical variety.

So congratulations to the American judicial system: it may be full of corrupt right wing hacks, but it turned out to be surprisingly short on insanely self-defeating corrupt right wing hacks, at least this time around.

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