It is very possible that later this year the Supreme Court will be asked to rule in a case that could effectively decide who will be inaugurated as president in January 2025. In fact, that happened four years ago, when a petition by the State of Texas asked the Court to throw out the election results in four other states. That filing, to be sure, had many legal vulnerabilities, including the question of how Texas could have standing to challenge election results in other states. But in the Supreme Court, which has the power to change the law when it chooses to do so, an argument that some would call frivolous always has the potential to end up being accepted. Remember the example of Bush v. Gore. That ruling of the Court in December 2000 did effectively make George W. Bush the winner of the presidency, and many would say that the Court had to adopt some pretty indefensible positions to get there. Assuming that the margin of victory this year is close (as seems likely), we can expect that litigation may again arrive at the Supreme Court’s doorstep that would allow the Court to play a central role in determining who won the presidency.

If the Court is confronted with such a case, will it behave in a principled and democratic manner, enforcing the rules neutrally and allowing the chips to fall where they may? Put differently, will it buttress the basic principle of majority rule, or will it be guided instead by a preference for one side in our political wars? Given the Roberts Court’s record in politically significant election-law cases, and even more importantly given the Court’s most recent, stunning decision to give the president a vast new form of absolute criminal immunity, there is every reason to be fearful that the Court will put a political thumb on the scale if given half a chance. Democracy advocates need to keep that in mind as they prepare for whatever may happen in this year’s postelection period.

Before addressing the reasons why the Court has become suspect when it comes to upholding a democratic election outcome, it’s important to understand how and when the Court became a central participant in determinations about the true victor of presidential elections. It hasn’t always had that role.

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Returning to the question raised at the outset, there is little reason for confidence that democracy and the rule of law will be respected this coming December if the Court is asked to rule in a manner that could affect who is inaugurated in January. The Court has forfeited any presumption of good faith at this point. The immunity decision is that bad.