Could Someone Please tell Mike Lindell that the Supreme Court can’t Reinstate Trump?

Mike Lindell is apparently a very talented pitch-man. I say that because he has gotten rich selling millions of My Pillows, which clearly required some salesmanship. I would have thought that if you pick any given moment in modern history, everybody already has all the pillows they need. I didn’t even think pillows were a thing that people buy, but rather something came into the world having, like a belly-button, or a hatred of feeling something sticky underneath a table.

Plus, if someone was going to sell millions of pillows, I’d have guessed the pillows would have some enticing name, like “Sleep-o’cloud” or “Soft-o’snooze” (I was not a marketing major in college). “My Pillow” basically describes any pillow that is not somebody else’s pillow. And while the name may be legally accurate, it is not particularly enticing to someone wanting a good night’s sleep. So let’s give Lindell mad respect for his ability to get people to buy something they already had a better one of.

I point this out because it is at risk of getting lost in the light of Lindell’s recent bat-shittery with regards to the 2020 presidential election. He has dedicated his life convincing the American people that Donald Trump really won that election…by a landslide! And the evidence he has of this is so overwhelming, the US Supreme Court will very shortly vote to overturn the election and reinstate Trump into the White House. SCOTUS will do this 9–0 no less! Just as soon as Lindell “brings the evidence to the court”.

Spoiler alert…This is not going to happen.

Let’s put aside the merits of Lindell’s case. Admittedly, it is a bit difficult to understand what he’s claiming. He made a 3 hour long movie called “Absolute Proof”. Then, because “Absolute Proof” wasn’t absolute enough, he made a sequel, which should have been called “Absolute Proof 2, Absoluter Proof!”, but was actually called “Absolute Interference”. And now, there’s a third blockbuster in the works, which is going to be unironically titled “9–0”. And while it does seem that if someone really had absolute proof of something, they would just tell us, in a few short sentences, what it is. They wouldn’t have to keep making numerous Irishman-length movies about it.

Whatever the titles, the movies basically say that the Chinese Communist Party, working through the Italians, sent secret codes through space to the Dominion voting machines to steal votes for Joe Biden. Makes sense. That’s how I won my first election as president of my high school chess team. But we will pretend that Lindell really did have ironclad evidence of…something. The Supreme Court is still not going to order Donald Trump reinstated as President. It’s simply not how the Supreme Court works. Let’s explore why.

Lindell seems to feel that at the “appropriate time” (whenever that is), he will “go to the Supreme Court” and tell them about his evidence. So the first problem he has is that the justices of the US Supreme Court do not just sit around on their barcaloungers drinking Bravazzis waiting for someone to knock on their door and say “Hey, wanna see something cool?” There is no just “going to the Supreme Court”.

There is, surprisingly enough, a procedure that must be followed. You first have to file a lawsuit in a Federal District Court. There are then pleadings, and discovery, motions, hearings and a trial. This alone would take many months, rendering Lindell’s promise that Trump will be “reinstated by August”, unlikely, in the sense that the Queen accepting my proposal is “unlikely” (call me Elizabeth!).

Whoever loses at the trial level will have to appeal to the Federal Circuit Court, which would also be a lengthy process. When they issue a decision, the losing side would then turn to the Supreme Court. But unlike the trial and appellate courts, the Supreme Court is a court of “discretionary jurisdiction”. They don’t have to take the case. In fact, they only take about one out of 70 cases they are asked to review. And you’d think if they wanted to arrogate to themselves the task of deciding the presidential election, they would have done it BEFORE the election was resolved and Joe Biden was sworn in. Yet their rejected dozens of Trump campaign requests to do so.

And this leads to Lindell’s biggest problem. Even putting aside all of the procedural impediments, is simply no mechanism for the Supreme Court to intervene.

His first problem is that there are a bunch of legal doctrines which prevent the Supremes from even considering a case. Again, the Court is not a legislative body. They don’t just see a problem and solve it to their liking. Samuel Alito probably wakes up every day deeply disturbed that there are gay people having Pride Parades around the nation. But he doesn’t just put on his lederhosen (it’s how I imagine him) and write an opinion saying “I Banish Thee” three times, making them go away. There are rules about these things.

One legal doctrine that will stop the Court from intervening is known as “mootness”. That means the matter has already resolved itself and there is no longer a legal controversy the court can address. So, for example, if you are filing a stay of execution in a death penalty case, and the prisoner has already been executed, the court will dismiss your case as “moot”.

Here, the Constitution provides a specific protocol for choosing a president. Elections are certified, the electors from each state are chosen, the Electoral College votes, the US Senate counts the votes and declares a winner. People with “standing” (a whole other issue) can challenge the results of these elections, and in fact, the Trump campaign and it’s supporters did so in excess of 60 times. But this all happens BEFORE the Electoral College votes.

Once those court cases are resolved, and Mike Pence counts the votes on the floor of the senate, is rushed off the floor to avoid being hung by average tourists who just happen to be visiting the Capitol, and then comes back to finish counting the votes, it is over.

Any further objections are, dare I say it, moot. There is no going back after a new President is sworn in and saying “But hey, what about the space hufties who stole the votes??” The law values due process, but not infinite process. “Finality” is something that the court has spoken of and acknowledged the importance of hundreds of times over the years. And there is no matter where finality is more important than who gets the nuclear codes.

Even putting all of that aside (we’re putting a lot aside here), and even pretending that the Court would somehow hear the case, Lindell’s remedy, namely, overturning the election and declaring Trump President, isn’t a thing. The constitution has one, and only one method of selecting a President, and as we’ve discussed, that involves the Electoral College. The constitution does not say anywhere that the Supreme Court can just order a President.

In Bush vs. Gore, the Court stopped a recount in Florida, but it didn’t say “And George Bush shall be our next President”, that was still up to the Electoral College. The fact that Lindell continues to tell his followers that the Supreme Court is going to “reinstate President Trump” in the next 60 days shows that he has not bothered to spend 5 minutes learning how the court actually works or what it can and cannot do. He’s just lying to his followers, stoking their fears, falsely raising their hopes, and counting on their ignorance. Actually, maybe that’s how he sold so many pillows.

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Daylin Leach

Daylin Leach

Long-time state House and Senate member, author of PA’s Medical Marijuana law, also creator of “shit-gibbon!” Comedian, professor, father of 2 awesome children!