One of the biggest avenues for a challenge to the upcoming 2024 election is looking like the courts, specifically the Supreme Court. Many important decisions for the 2024 election have already been put before the court, for example the case removing Donald Trump from the ballot in Colorado. Additionally, the 2020 election included a number of judicial challenges, and while they were not the biggest thing the public likely remembers as deciding the election, they did play a significant role in preparing for 2024. But neither of these tell why the Court could have the absolute final word on the election and why that may be a scary concept today. For that one must look (as many in the media are) at the election of 2000, and Bush v. Gore, the Supreme Court case which decided the election in favor of George W. Bush in a contentious 5-4 decision.

The 2000 election took the (mostly) unprecedented step of giving the Supreme Court the final word on the electoral process. While members of the Court had previously had influence in settling contested elections (justices were on the deciding commission in 1876), this was the first time that the institution was involved directly. While the court attempted to decide Bush v. Gore without establishing legal precedent, they may not have been successful, and definitely did establish a (non-official) procedural precedent. This means that if there is to be challenge to the upcoming election, it is likely to land before the Supreme Court. On its face this seems like a reasonable venue of decision, as the role of the court is to police the boundaries and settle disputes between branches of government as an impartial body. But there are two points that challenge the conclusion.

The first is that most electoral challenges, such as those involving electoral votes, have their conflict resolution based in the legislative branch, and not the judiciary. This does not cover every possibility, and as such it likely makes sense that the court has jurisdiction, although the court may resent that fact, as they do in the Bush v. Gore opinion.

The second, and much larger issue, is that the court’s legitimacy (as derived from the public) could be very shaky in the upcoming election. In theory the Supreme Court is an impartial legal body without political allegiances, but many worry that this is not reality. Take, for example, the fact that 3/9 justices are Trump appointees, and 6/9 justices were appointed by Trump or either Bush. The theory states that this should not matter, and that the lifetime justices will be impartial in these decisions. This concept may not have held in 2000.   All 5 of the Justices in the majority were appointed by a conservative president, which could indicate decisions based on ideology. While it is possible that the current justices will act impartially, it is even more of an open question, as the recent abandonment of different precedents has many in the public fearing that a so-called “activist court” could be anything but impartial.

While the concerns over impartiality are both real and important, the more pragmatic question is if not the Supreme Court then who? For challenges to the election that are not required to be resolved in Congress, what better avenue is there to settle contested elections? There is no other avenue that is as compelling or robust as the Supreme Court, and as such, one must put their faith in the design of the electoral system and the principles of impartiality in the Court, and hope it works out.