The Morning Dispatch: Is the Supreme Court Trump’s Last Resort?

Happy Thursday! A big thank you to all who tuned in to last night’s Dispatch Live with David and Sarah. If you missed their conversation about the coming Supreme Court fight and David’s new book—or if you want to watch it again—check it out here.

Quick Hits: Today’s Top Stories

• The United States confirmed 49,002 new cases of COVID-19 yesterday per the Johns Hopkins University COVID-19 Dashboard, with 5.8 percent of the 847,306 tests reported coming back positive. An additional 1,233 deaths were attributed to the virus on Wednesday, bringing the pandemic’s American death toll to 201,957.

• President Trump said Wednesday he wants to seat a new Supreme Court justice as quickly as possible because he thinks the election “will end up in the Supreme Court,” and “I think having a 4-4 situation is not a good situation.” Asked by a reporter if he would commit to a peaceful transfer of power if he loses, Trump demurred. “We’re going to have to see what happens,” he said. “I’ve been complaining very strongly about the ballots. And the ballots are a disaster.”

• A grand jury in Louisville yesterday indicted one of the three police officers involved in the death of Breonna Taylor, charging him with three counts of wanton endangerment. Despite a mayoral curfew and restricted movement in the city center, protests broke out around Louisville after the decision. According to police, two officers were shot and wounded during the chaos. Both are expected to recover, per the police chief.

• Preliminary data shows little evidence that reopened schools have been focal points of coronavirus transmission so far this fall, the Washington Post reports. 

• Senate Republicans released the results of their probe into Hunter Biden’s involvement with Ukrainian energy company Burisma yesterday, arguing that Biden’s tenure on the Burisma board while his father headed U.S. policy toward Ukraine was “very awkward” for U.S. officials operating in the region and “cast a shadow” over U.S.-Ukraine policy at the time.

• CDC Director Robert Redfield said Wednesday that more than 90 percent of Americans have yet to be exposed to COVID-19, suggesting that the nation is nowhere near a level of “herd immunity” that could end the pandemic without access to a vaccine.

• Johnson and Johnson announced Wednesday that its coronavirus vaccine has entered Phase III clinical trials, making it the fourth vaccine developer to hit that milestone this year.

Is the Supreme Court Trump’s Last Resort?

The biggest headline from President Trump’s public statements yesterday was undoubtedly his refusal to commit to the peaceful transfer of power if he loses November’s election. “We’re going to have to see what happens,” he said when asked by a reporter. “I’ve been complaining very strongly about the ballots. And the ballots are a disaster.”

“Get rid of the ballots and you’ll have a very—we’ll have a very peaceful—there won’t be a transfer frankly, there’ll be a continuation,” he said.

The comments were dangerous, irresponsible, and unbecoming of the presidency. “Fundamental to democracy is the peaceful transition of power; without that, there is Belarus,” Sen. Mitt Romney said in response. “Any suggestion that a president might not respect this Constitutional guarantee is both unthinkable and unacceptable.”

But as we’ve discussed before—and as David broke down on Dispatch Live last night—there are a series of mechanisms in place that would prevent Trump’s autocratic impulses from having any real effect if he were to lose. Come Inauguration Day, if Joe Biden has been certified as the winner of the election, the powers of the presidency—including the role of commander in chief—are transferred over to him. Trump can complain and tweet all he wants, but he’d be doing it from somewhere other than 1600 Pennsylvania Avenue.

Some less-viral comments from Trump earlier in the day, however, may end up playing a much bigger role than the aforementioned bluster. Days from announcing the third Supreme Court appointee of his term, President Trump on Wednesday reiterated his desire for that appointee to be confirmed to the bench before the election as a bulwark against what he called the “scam that the Democrats are pulling.”

“I think [the election] will end up in the Supreme Court,” Trump said. “And I think it’s very important that we have nine justices. … I think having a 4-4 situation is not a good situation.”

The Pennsylvania Republican Party is challenging the Pennsylvania Supreme Court’s extension of the battleground state’s mail-in voting deadline, teeing up the post-Ginsburg Supreme Court for a possible appeal that could significantly affect the number of ballots Pennsylvania election officials are required to invalidate come November 3.

The Pennsylvania GOP filed court documents Monday night and Tuesday morning arguing that the Pennsylvania Supreme Court’s September 17 judgment unlawfully extends the state’s mail-in voting past Election Day and forces state election officials to accept ballots that were received after November 3, “even if these ballots lack a legible postmark.” On Tuesday, the Pennsylvania GOP asked the Pennsylvania Supreme Court to stay its decision so the party can ask the U.S. Supreme Court to hear an appeal. A stay would mean the current law, passed by a bipartisan majority of the legislature and signed by Gov. Tom Wolf, would remain in effect.

The lawsuit paves the way for a bitter election fight in a swing state Trump won in 2016 by a mere 44,000 votes, and is pivotal to both candidates’ paths to 270 electoral votes this go-round. “The very disappointing decision by the Pennsylvania Supreme Court has caused more confusion than answers for the average voter,” said Pennsylvania GOP Chairman Lawrence Tabas. “These last minute changes ordered by the court should be proposed, debated, and passed in the state legislature, who has the constitutional authority to act. We hope the state Supreme Court will grant the stay for the sake of a free and fair election.” Should the Pennsylvania Supreme Court not grant an immediate stay, the Pennsylvania GOP will seek a stay from the U.S. Supreme Court. “We will actively pursue all of our legal options,” Tabas added.

The GOP’s main concern with the ruling is the potential for candidates to retroactively change the electoral outcome after November 3. “Receiving ballots after election day allows losing candidates to ‘go find’ enough late votes to change the outcome,” the GOP’s “Protect The Vote” website says. “Moreover, any system that allows late-arriving ballots is ripe for weeks of prolonged litigation, which undermines the confidence and legitimacy of the election.” 

Dr. Emily Bacchus, an associate professor of comparative politics at the University of Kentucky who studies election fraud, isn’t convinced this mail-in-voting extension is cause for concern for either party. In an interview with The Dispatch, Bacchus said it would be extremely difficult for Democrats to make up for any electoral deficit just three days after Election Day unless they scrambled to release exit polling data, which is unlikely. Joe Biden’s practically nonexistent ground game during this pandemic election also mitigates these concerns.

The GOP’s Pennsylvania lawsuit could be the first case to reach the post-Ginsburg Supreme Court, but it’s certainly not the only state where the RNC is fighting what it sees as voter fraud. The RNC is currently involved in lawsuits in approximately 19 states, challenging electoral laws it believes threaten the integrity of elections. “In Pennsylvania and other states, Democrats continue to try and make last minute changes to upend our elections process and diminish the integrity of the vote,” RNC national press secretary Mandi Merritt told The Dispatch. “The RNC will continue to actively litigate and monitor developments on the dozens of lawsuits we are involved in and will continue to defend election procedures and hold Democrats accountable.” 

Recent wins for the Republican Party include Michigan, Pennsylvania, Iowa, North Carolina, Minnesota, and Florida. “Democrats have claimed victory in some split decision victories, however, many of their recent ‘successes’ have been in front of friendly trial-level courts (Georgia, South Carolina, Ohio, and Michigan),” an RNC official told The Dispatch. “But importantly, they are consistently losing at federal appellate courts. We expect to win on appeal in most or all of these cases.”

Europe’s Second COVID-19 Wave

If you’ve been checking in on our COVID-19 graphics in recent days, you probably noticed that, after weeks of decline following their peak in late July, the seven-day rolling average of new confirmed cases is starting to tick back up again. We’re still a far cry from the approximately 70,000 daily cases we were seeing several weeks ago with near-10 percent test positivity, but we may be entering another cycle of transmission rates trending in the wrong direction.

For much of the past few months, critics of the U.S.’s state and national coronavirus response—of which there are many—have pointed to the relative squashing of the virus in other regions across the globe. Europe, with its somewhat similar culture and climate, was the perfect foil. 

Not anymore. After months of comparative calm, Europe’s second wave of the virus appears to be well underway. Spain and France have even surpassed the United States on a rate basis, new COVID-19 cases per million. And it’s creating some tensions across the pond.

“Let’s be absolutely clear about what’s happening in Europe, amongst some of our European friends,” United Kingdom Prime Minister Boris Johnson said in defense of his decision to institute a 14-day quarantine for travelers from Spain. “I’m afraid you are starting to see in some places the signs of a second wave of the pandemic.” Spanish Prime Minister Pedro Sánchez has taken the move as an affront, and said a few months back that tourists are “safer” from COVID-19 in most regions of Spain than they are in the United Kingdom.

According to a Wednesday update from the European Centre for Disease Prevention and Control, however, Spain is leading Europe when it comes to the spread of the virus, with 314.8 residents per 100,000 contracting COVID-19 in the past 14 days. The Czech Republic was second with 218.6 cases per 100,000. France, Belgium, the Netherlands, and Hungary, are exhibiting warning signs as well.

Despite stringent lockdown measures at the outset of the pandemic, European governments have since advised their citizenry to return to normalcy after the first wave subsided. Federal guidance, combined with broad lockdown fatigue, are likely contributing factors to the rising number of cases across the continent. French President Emmanuel Macron, for example, began to lift restrictions back in June—declaring that France had won its “first victory” against the virus. Countries throughout the EU reopened restaurants, hair salons, and schools; and European leaders encouraged domestic travel to see family and friends.

Now COVID-19 on the march, many countries are now reinstating coronavirus restrictions and lockdowns. Beginning last week in England, social gatherings of more than six people were nationally banned. Spain’s capital of Madrid began to enforce partial lockdowns earlier this week that affect 850,000 people, sparking large peaceful protests across the city. Czech Health Minister Adam Vojtěch publicly resigned Monday, as the country’s confirmed cases topped 50,000.

While the greater international testing capacity results in higher numbers of confirmed cases, the proportion of positive results from tests is also on the rise. “We have a very serious situation unfolding before us,” Dr. Hans Kluge, the World Health Organization’s regional director for Europe, said last week.

Trump’s Blame Game

“The United Nations must hold China accountable for their actions,” President Trump said during the 75th session of the U.N. General Assembly on Tuesday. In a scathing eight minute speech that had been prerecorded at the White House, the president placed blame for the pandemic squarely on China’s early mishandling of the coronavirus and deception on behalf of the Chinese Communist Party (CCP). The same day as the opening General Debate, the United States death toll from COVID-19 topped 200,000.

President Xi Jinping, in contrast, took on a conciliatory tone—borrowing a page from the American diplomatic playbook and co-opting the language of democracy. But, as Thomas Joscelyn writes in his latest for Vital Interests(🔒), “his intended target was no less obvious.”

“Xi’s speech was peppered with phrases that sound like a progressive American was speaking. Consider his use of the phrase ‘interconnected global village.’ Those words were uttered in the context of combating COVID-19. Xi wants to turn the pandemic narrative around, portraying his China as a responsible global leader in combating the virus. But there is additional context for his wording. 

The CCP uses international institutions such as the U.N. to protect its own tyranny. When Xi speaks of ‘democracy’ and ‘multilateralism,’ he means China should have at least an equal say in how those same institutions are run.”

As the world’s dominant superpowers posture in an international blame game, European onlookers have taken notice. “The world today cannot be reduced to the rivalry between China and the United States, irrespective of the global weight of these great powers,” said French President Emmanuel Macron on Tuesday. But the continuing public health and economic fallout of the pandemic has begun to stir up friction in Europe as well, as the continent confronts an impending second wave of the virus.

Worth Your Time

• Look ma, we’re in the New York Times! This article by Marc Tracy is an interesting look into how a growing number of journalists are forsaking traditional web publication tactics to hawk their skills directly to readers on subscription sites like Substack, the newsletter startup that happens to host our own content. Give it a read if you’d like a glimpse into the business side of what we do around here.

• Over at Commentary, friend of the The Dispatch Christine Rosen has a good piece digging into how the New York Times has been busy editing out the more controversial and less defensible parts of the 1619 Project, a work of revisionist history specifically designed to reframe the foundational moment of American history as the year 1619, the year the first enslaved Africans set foot on Virginia soil. “If changes made by the Times and BLM signaled a good-faith effort to revisit their ideological positions, or perhaps even reform their thinking with regard to our country’s founding principles or the importance of strong families, such revisions would be welcome,” Rosen writes. “In fact, since they were done in a way that hindered transparency, and with no accompanying discussion by leaders of why such changes were made, one can only conclude that the alterations were done to shield both of these ideological movements from criticism.”

• Elizabeth Bruenig, the Times’ resident Catholic leftist, writes that 60 years after the election of John F. Kennedy, the lack of controversy around Joe Biden’s Catholicism should not be cause for celebration for Catholics. Before their full assimilation into American culture, “Catholics were suspected of the worst sins of illiberalism: dogmatism, anti-intellectualism, tyranny, malice,” Bruenig argues. “And yet, Catholics were also responsible for articulating some of the best critiques of liberalism, citing callous individualism, gross inequality, exploitation and indifference as some of the philosophy’s excesses.” For Bruenig, the price of admission into the American mainstream has been the loss of a distinctively Catholic politics. “Perhaps Catholics have earned the right to no distinction,” she concludes, “the freedom of having no special moral obligations. And what a wide, barren, featureless liberty it is.”

Presented Without Comment

Toeing the Company Line

• This was one of our favorite Dispatch Podcasts in a while. Sarah, Steve, Jonah, and David debated the prudence of pushing through a Supreme Court nominee before the election; Steve is not a fan of the “deal” David and Jonah have proposed in recent days. The gang then turns to Amy Coney Barrett, the 1619 Project, and next week’s (!) presidential debate.

• Jonah’s latest G-File (🔒) defends the grand Supreme Court bargain he, David, and others proposed this week, where some Senate Republicans would pledge not to confirm a nominee until after the election in return for some Senate Democrats promising not to pack the court or create new states. “If all that matters is power, then prudential arguments are nothing more than spin,” he writes. “If you have the power to do X, you can do X—debates over ‘should’ are for suckers. How will that position help down the road when Democrats try to do everything they can in the face of hollow GOP objections that they ‘shouldn’t’?”

• The latest piece in the “Biden Agenda” series is up, this time from Frederick Hess on higher education. Hess predicts a Biden victory would lead to some kind of free college and a plan for debt forgiveness, never mind the cost, and a return to Obama’s Title IX guidance, never mind that it led to hundreds of lawsuits.

Let Us Know

It might just be us—because our job is to be steeped in the news—but everything seems really, really tense right now, even more so than the past few months. Does it feel that way in your neck of the woods too? If it does, what’s your plan to maintain your sanity these next 40 days?

Reporting by Declan Garvey (@declanpgarvey), Andrew Egger (@EggerDC), Charlotte Lawson (@charlotteUVA), Audrey Fahlberg (@FahlOutBerg), James P. Sutton (@jamespsuttonsf), and Steve Hayes (@stephenfhayes).

Photograph by Joshua Roberts/Getty Images.