At 2:57 a.m. (E.T), while much of the country was asleep, Donald Trump was tweeting. In fact, the president was specifically publishing this:
"If Sleepy Joe Biden is actually elected President, the 4 Justices (plus1) that helped make such a ridiculous win possible would be relegated to sitting on not only a heavily PACKED COURT, but probably a REVOLVING COURT as well. At least the many new Justices will be Radical Left!"
I think in Republican circles, it's seen as wild-eyed nonsense when Democrats express concern that Donald Trump intends to turn to the Supreme Court to help him stay in power. But the president himself keeps giving the public -- friend and foe alike -- reason to believe this is precisely his plan.
His early-morning tweet is strangely written, but the point seems clear enough: Trump is effectively trying to lobby the high court. As the president sees it, a Biden victory would be "ridiculous," and he hopes a majority of the Supreme Court -- or in this case, "4 Justices (plus1)" -- can be counted on to prevent this from happening.
The Republican incumbent didn't specify how, exactly, he'd liked to see the justices do this. Perhaps he's referring to pre-election appeals (some of which we saw this week); maybe he's thinking about post-election litigation; perhaps it's a bit of both. It's also likely Trump hasn't thought through the details, but just likes the idea of having the Supreme Court intervene on his behalf.
The bottom line, however, remains the same for the president: it should fall to the current lineup of justices, a third of whom the president personally chose, to prevent a Biden victory.
As a Washington Post analysis added, "Within the constraints of his convoluted logic, this is true: If Biden wins more votes in enough states, it's because the courts didn't prevent that from happening."
But note how Trump makes the pitch: his tweet wasn't describing a legal framework; it effectively came with a warning to the justices about how much they wouldn't like a Biden presidency.
For Trump, it doesn't seem to occur to him to make appeals based on right and wrong, constitutional or unconstitutional, principled or unprincipled. He thinks in self-interested terms, and the president seems to assume everyone else does, too.
And so, we get this weird pitch. Supreme Court justices should help Trump win, the argument goes, because they'll be happier with him than with his opponent. That rascally Biden might expand the court with a bunch of center-left justices the current conservative majority would disagree with, so if they know what's good for them, far-right justices should make the political calculus now.
As a factual matter, Trump's pitch isn't altogether wrong -- Biden might very well approve judicial reforms -- but it's a curious way to publicly pressure sitting justices to do him an electoral favor.