The latest in this saga is that the Texas Attorney-General (i.e. that state's highest legal officer) has filed suit in the Supreme Court against four other states for, as he sees it, the unconstitutionality of their mail-in ballot laws.
Paxton has framed the litigation as a dispute between states, thus the apex court of the United States has original jurisdiction in the matter. Specifically, the Paxton complaint asks the Supreme Court to push back the Electoral College voting date from 14th. December 2020 to a later date and to order the four respondent states to disregard unconstitutional ballots. If successful, this would mean that those four states (and possibly more states if the scope of the action is then broadened) would have to repeat state-wide counts but without the invalidated ballots. Presumably, this would then deliver the relevant electoral votes to Trump at the deferred Electoral College.
As matters stand, the Supreme Court has not actually accepted the complaint for an oral hearing, never mind decided it. Paxton is still waiting for the justices to consider the arguments for and against whether they should hear the case at all, which is what the very strong response from Pennsylvania is about. I am expecting the Supreme Court to knock Paxton back, but it is very difficult to be sure because the Supreme Court bench does now have more of a (small 'c') 'conservative' balance; and, any sort of legal prediction is difficult, even on the merits of a particular case, because the whole system in the United States is so highly politicised, something quite alien to the British way of doing things.
In England & Wales, we don't officially have 'Conservative-appointed circuit court judges' or 'Labour-sympathising Lords Justices of Appeal'. Lord Denning was not a Liberal Party appointee. Lord Scarman was not a mainstay of his local Labour Party in between hearing appeal cases. For that sort of carry on, or anything similar, to be the case here would be considered epically scandalous and there would be public inquiries and sundry demands for resignations or worse. The nearest we have to a political judiciary here in England & Wales is that local lay magistracies have traditionally had to reflect the political balance of the sessional district in which they sit, but the appointment process was and is still officially neutral and bureaucratic. In the United States, the judiciary is overtly political, as is routine law enforcement, with elected sheriffs and prosecutors. Imagine an English county with a Chief Crown Prosecutor or Chief Constable who has been elected, running as the Labour or Conservative candidate. We have Police & Crime Commissioners now, and used to have local police authorities made up of elected councillors, but these are mechanisms for deciding policy, whereas in the United States, elected prosecutors and sheriffs actually make operational law enforcement and prosecutorial decisions. Even judges are elected in some local areas and states of the USA, which is bizarre - for instance in Pennsylvania, the state supreme court judges are popularly elected to 10-year terms! It's just how they do things there.
None of this means that American judges are rigidly and simplistically partisan. There does seem to be a shared sense of civic values in the system. As a demonstration of this, the Northern Georgia Circuit federal judge who recently dismissed the Powell suit is a Republican appointee. But was he being 'judicial'? Was he upholding his oath of office and defending the Republic and a nation of laws, etc., etc., or is it that legal and political considerations are complexly entwined, the legal basis of the suit was politically ripe but legally and constitutionally premature, and thus he calculated that allowing the litigation to be quickly appealed up to the apex level is better politically and, for tactical reasons, this should be done without showing his own hand? The fact he is overly a political appointee raises that question in my mind - which is the problem. Can anyone have confidence in such a system?
There are some points that could be made for the American way of doing things, odd and strange as it seems to British eyes. For one thing, Republican v Democrat partisanship was not traditionally ideological; that has only become a feature very recently. Moreover, it should be remembered that the terms 'conservative' and 'liberal' not only have meanings in American English that are very different to the more nuanced meanings we are used to in Britain, they also have term of art denotations within a juridical context. A 'judicially conservative' judge may nevertheless be a raging left-liberal; conversely, a judicially-activist judge may in fact be deeply conservative politically. A possible example of the latter was the late Robert Bork, a very accomplished United States federal judge (though paradoxically and confusingly, Bork's activism had the aim of taming activism in favour of traditional American judicial passivism). These differences seem to cut across established partisan divisions, and individual judges will also revise and change their judicial attitudes with further learning and experience, all of which means that appointments or elections on the basis of simple party allegiance and patronage are no guarantor of the socio-cultural and political flavour of a particular court or circuit over the fullness of time.
Most of the American judiciary themselves, state and federal, would probably prefer not to be looked on as didactic warring factions sitting in legatine mini-parliaments, but more as a Socratic elite ruling on (or quietly leavening, depending on the judicial attitude) American social and cultural mores over the vaster spans of service allowed to jurists compared with elected politicians. In defence of the American system, it could be observed that the reality of a politicised judiciary - warts and all - is just a more honest basis to proceed, with checks and balances in place to discourage abuse and partisanship. We like to think the English and wider British judiciary are impartial, but it's not really true in practical reality, and it is also obvious that there is extensive political interference and intervention in police and prosecution decisions in this country, it is just hidden and done behind the scenes.
Yet the reality is that American commentary, even rulings from learned federal and state supreme judges, tends to be ultra-partisan and Manichean, as well as boisterous, and it is quite difficult to discern what is really going on, even who is telling the truth. For me, the knowledge that a particular judge is a 'Republican' or 'Democrat', or indeed 'Independent' - if there are any - completely undermines confidence in the American judicial system and means that, at least in my eyes, a crucial font of impartial and objective information within that society is tainted and coloured by agendas.
Returning to matters at hand, a significant development is that 17 states have now filed amici curiae in support of the suit. On the political front, approximately half the GOP House delegation have also voiced support, which in itself changes nothing of the legal prognosis for success or failure in the Court itself, but partisanship for and against presidential personalities isn't always strictly split along party lines, and if Trump manages to force a contingent election in Congress (which I believe is the real intention, as this has historical precedence), then it bodes well that more than 100 House Republicans are already willing to back what we keep being told is ambitious, even vexatious and abusive, litigation that is bound to fail.
What are the possible outcomes of it all? I think this is likely to go one of two ways:
(i). The U.S. Supreme Court hears one or more suits and issues rulings favourable to Trump. If this happens, then the affected states will re-count and/or the issue will be decided by a contingent election in Congress. If some or all affected states are pushed into a zugszwang of this sort, they may resist and insist on appointing Democratic electors (or anti-Trump Republicans). If a contingent election looks likely, then the Democratic strategy may be to try and have the date of the election pushed back.
(ii). The Court rejects all the litigation or rules unfavourably for Trump. What happens after this eventuality promises to be either the biggest damp squib in history, with the Trump phenomenon vanishing into thin air, or you have an actual constitutional crisis and civil war situation. The Beltway elites mostly don't support Trump, but he does have a base, as demonstrated at the least by the 17 states that back the Paxton litigation and the 100 GOP House members.
The impact of Trump on U.S. politics has been not so much in policy (he didn't really do much that was different), it was more the iconoclastic mood of his presidency. The question is whether this mood will continue when Trump departs and whether it can crystallise into something, and if so, what? If Trump prompts a genuine crisis in the legitimacy of the American system of government, then - good or bad - that would be a stupendous legacy for a fairly banal New York property developer and international hotelier. Nevertheless, as I explain above, the roots of an American political crisis are embedded in the flaws of the system itself. The first president, George Washington, warned against partisanship and its cancerous affect on representative government, but even he might not have quite envisaged the unseemly - and unrepublican - hyper-partisan spectacle that has been unfolding before ordinary Americans for decades and cannot just be blamed on Donald Trump.