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Great thread. I suspect that at least 5 Supreme Court justices would have helped Trump steal the election if the job were judicially do-able: i.e., it was possible to write an opinion that wasn't facially a farce. Biden's substantial EC win made that impossible. But ... 1/ https://twitter.com/mjs_DC/status/1337064858077065216
...that's no guarantee that a partisan Court won't intervene if they think they can get away with it. That's the criterion. Not the Court's existing jurisprudence. The Court's partisans will upend an election only where they believe they can at acceptable cost to themselves. 2/
Just FWIW, Nate Silver isn't the problem here. He's always looking to set up something as conventional wisdom so he can pooh-pooh it (usually with data): that's his thing and it's ok. But it bears emphasis that the idea that the Court is partisan is *not* conventional wisdom. 3/
A lot of law professors, in particular, are invested in a picture of the Court as engaged in principled, constrained decisionmaking even in cases that are politically white-hot. That understanding is reflected as conventional wisdom. 4/
It's not surprising that many law professors, including most professors who teach/write about constitutional law, think this way. Can you imagine teaching constitutional law with a straight face if you believed otherwise? 5/
(I can't, which is why I stopped teaching constitutional law.) 6/
Now, to be clear, I *do* believe the Court's partisans are constrained. They are constrained by their own fragile legitimacy. But that isn't a principle. The hoarding of political capital is expediency, and that's all. 7/
For my part, I think the best course is to reduce the power of courts to intervene in democracy. Not just in elections (although *definitely* in elections) but generally. We would benefit from a lot less judicial review. /end
