Maybe we should call it ‘Thomas-gate’? (No, that’s not the HAWT TAEK). I realize that Supreme Court Justice Thomas shouldn’t automatically be considered to share his wife’s bugshitcrazytarian views on the election. But Democrats should call on him to recognize both the legitimacy of the election and the integrity of the vote itself (don’t let him bullshit his way out of this by recognizing the former, but not the latter). If Thomas doesn’t, Biden should state that they–and, unfortunately, “they” means, to a considerable extent, Biden–should not recognize the legitimacy of any 5-4 vote in which he is the swing vote. There is no reason why, if the judiciary does not recognize the validity of the executive branch, the executive branch is obliged to reciprocate.
After all, Hamilton–who disastrously underestimated the role judges would play–argued that the executive branch was supposed to be a check and balance on the court:
But, as Hamilton observed, the system is built such that the Executive has the discretion to refuse to enforce Court decisions. In the words of Professor Chris Sprigman, “Hamilton argued the court’s utter dependence on the executive branch to enforce its judgments meant the court was no real threat to liberty. But for that argument to make sense it must also be true that, at least in cases where a court ruling provokes some disquiet, the president will make an independent assessment before enforcing it.” Just so.
If Chief Justice Roberts wants the Supreme Court to maintain its position, Democrats have some leverage here, and they should use it.