De Facto Denials on the Shadow Docket: When the Circuit Justice Slow-Walks The Call For Response

Justice Alito effectively denies Pennsylvania emergency appeal by calling for response after Electoral Count Act "Safe Harbor Date"


Generally, the Circuit Justice plays a minimalist role. He can deny frivolous emergency applications without referral to the full Court–often without even calling for a response. For meritorious emergency applications, the Circuit Justice can call for a timely response, and then refer the matter to the full Court. But there is a third path for the Circuit Justice that is less obvious: de facto denial by delay.

The Court will not grant emergency relief without hearing from the other side. Sometimes, the Circuit Justice will enter an "administrative" stay that preserves the status quo while briefing concludes. But that stay will usually only last a few days.

Some emergency applications need relief by a certain date. For example, the state schedules an execution date and time. The Court must decide the pending application before the execution date and time. If the Court waits too long, the prisoner will be executed, and the application becomes moot. Recently, this frantic briefing schedule has created public schisms on the Court. Another example might concern an election. The Court may have to issue a ruling before an election is held so administrators know what rules to apply. Indeed, the so-called Purcell principle was used consistently this year to avoid last-minute changes to election rules.

This year, post-election litigation is facing a pressing deadline. December 8 is the so-called "safe harbor" date. Under the Electoral Count Act, elections settled by this date will be treated as presumptively valid by Congress. On December 3, a congressional candidate from Pennsylvania filed an emergency application with the Court. For this appeal to have any chance of succeeding, the Court would have had to resolve the application before December 8. The Court could have easily ordered a 24-hour briefing schedule. Sucks for the parties, but the Court seldom considers the burden of tight deadlines. But Circuit Justice Alito ordered a response by December 9. Generally, six days is the standard reply time for an emergency application. And, apparently, Justice Alito did not think the case warranted faster consideration.

By slow-walking the response, Justice Alito effectively denied the application. Election Law professor Rick Hasen explained, "By setting the deadline for a response as December 9, this means that the Supreme Court won't act until well after the safe harbor deadline has closed, making it even less likely that the Supreme Court would overturn the results in Pennsylvania."

Another aspect of shadow docket litigation: de facto denial through by granting the full six days for a call-for-response.

NEXT: Short Circuit: A Roundup of Recent Federal Court Decisions

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  1. It’s been obvious since the Court refused that pre-election PA appeal, and without even issuing an order to segregate ballots which complied with state law from ones violating it, that the Court was not going to pull Trump’s fat out of the fire.

    1. Hey! He’s just stocky!

      1. Perhaps he could reach a weight conducive to good health in prison.

        1. We all wish for something, some wishes are modest and mundane: that someone would actually wash themselves (with soap this time, for god’s sake!) to remove the eau-de-cat urine stench.

          Yes, we all wish for something, and yet you still have a visible nimbus of stench. Is it a medical problem?

    2. Brett still showing he doesn’t understand how law works. No ballots violated the law, by definition.

  2. I am surprised that Justice Alito found enough of a federal question to warrant a response.

    1. One thing that 2000 should have taught us is that SCOTUS justices LOVE asserting the power to intervene in presidential elections. Bush v. Palm Beach County, which should have been dismissed for want of a substantial federal question, was decided with a merits opinion 9-0. Even the dissenters in Bush v. Gore did not dispute that the Court had jurisdiction.

      At this point, it’s established law that SCOTUS has jurisdiction to hear these cases. It’s dumb, but until Congress passes a statute saying that the federal courts lack jurisdiction to do this, that’s going to stay the law, because SCOTUS justices like it.

      1. I don’t think that gets you where you want to go, because the Supreme court would still have original jurisdiction in such cases as a constitutional matter: One of the parties is a state.

        1. That’s not how that particular provision of Article III works.

          1. Yeah. The state isn’t a plaintiff in an election contest.

            In any event, Bush brought his suit against a county canvassing board and against Gore, not Florida.

            1. The relevant provision on the Supreme Court’s original jurisdiction would not require that a state be a plaintiff, a state as defendant would fall under the Supreme Court’s original jurisdiction because the provision says cases where a state is a party.

              However as you correctly note, most election related lawsuits are against local canvassing boards, not the state in it’s own right.

              1. You can’t sue a state as a defendant under the Eleventh Amendment.

  3. These lawyers could not litigate themselves out of a paper bag.

    First they decided to wait until after the election to contest the process, figurng if they won they would not need to. So the Penn Court is not so stupid as to not understand this. Result: Laches!!

    Then they waited to file their appeal until the 6 day window harm them even more. Result: Their appeal may not matter.

    Conclusion: If God had really wanted the Penn challenge to succeed She would have provided plaintiff with better counsel.

    1. I suspect it has less to do with the (campaign’s) lawyers’ competence and more to do with the (campaign’s) litigation not being about litigation – at least, not about judicial remedies. The litigation is just part of the show.

      That’s not to say that all of the litigation around this election is just for show. I have no doubt that many people have sincere concerns relating to this election and that some plaintiff’s have brought challenges in good faith believing they had meaningful chances of getting substantive relief.

      But I don’t think that’s generally been the case with the Trump campaign’s legal efforts. I suspect the campaign (i.e., most involved with it) realized Wednesday (i.e., Nov. 4th) morning that President Trump had lost and that nothing was going to change the result.

      The show must go on though. Indeed, with President Trump soon to be out of office there wasn’t much left but the show and whatever advantages (political or otherwise) might be gained from it. So it was time to ramp it up. The post-election litigation has just been part of the ramp.

      1. I think it’s possible that Trump realized that the legal proceedings were almost certainly not going to keep him in the White House, but,

        1) Almost certainly is not absolutely certain, and it can be worth spending an awful lot of other people’s money on a long-shot chance at 4 more years in the White House.

        2) There are some really, really important legal issues that need to be settled going forward, even if settling them doesn’t result in Trump winning.

        On the latter, we really do have to establish whether state election laws are laws, or merely suggestions. They got treated as suggestions in quite a few states this time around.

        1. I’d agree that there are some legal issues that need to be resolved -both for (slightly better?) clarity going forward and because they could affect the results of some races.

          I just don’t think that’s the motivation for most of the Trump campaign’s litigation.

          For my part, I think the Supreme Court of Pennsylvania’s decision to allow ballots (other than those provided for under Pennsylvania law) which arrive after 8PM(?) election day to be counted should be reversed. I think Chief Justice Roberts got it 180 degrees wrong when it comes to which courts – state or federal – should be making decisions relating to the implementation of state’s federal election laws.

          1. The last sentence of that last post should refer to states laws regarding the selection of presidential electors, not necessarily state election laws to the extent they don’t relate to the selection of presidential electors.

            1. Well, sure. There are two tiers of elections here.

              1) State and local. For these, the state court has the final world unless they really screw up in terms of 14, 15, or 19th amendment considerations. Even if they’re obviously just pulling things out of their asses, it’s a state matter.

              2) Congressional and Presidential. Not only is a federal interest implicated, there’s a strong argument the power to write the rules for THESE elections is given to the state legislature only, not to the state as a whole, and is a federal power exercised by state legislatures, and properly subject to federal court review.

              1. “… the power to write the rules for THESE elections is given to the state legislature only, not to the state as a whole…”

                That’s how I see it. The U.S. Constitution gives the duty (and authority) directly to state legislatures, not to states, to prescribe the manner in which states’ presidential electors are chosen.

                In most contexts, state legislatures get their authority from state constitutions and respective states’ courts have some authority to interpret the laws passed by those state legislatures and decide what those state constitutions require. That’s not the case when it comes to the manner of selecting presidential electors. In deciding that, a state legislature is working at a side job, so to speak, for the nation / the U.S. Constitution rather than working at its primary job for its state / its state’s constitution. And it is the federal judiciary which has the authority to interpret the rules which state legislatures put in place regarding the selection of presidential electors. Further, those rules need to comport with the U.S. Constitution, not respective state constitutions.

                States at large – to include state courts – don’t get to decide how presidential electors are appointed. They agreed to let their state legislatures do that when they agreed to the U.S. Constitution.

                This is where I think the majority bungled the reasoning in Bush v Gore. It should have simply said… the problem isn’t what the Florida Supreme Court ordered, the problem is that the Florida Supreme Court doesn’t have the authority to order such things. If a party wants to challenge the implementation of Florida’s election procedures they need, to the extent those procedures will determine the selection of presidential electors, to do so in federal court.

              2. Number 2 is a stupid argument, borderline frivolous, that has already been rejected by the Supreme Court more than once. But, of course, as federal judges keep explaining to incompetent Trump lawyers, it’s state legislatures who have standing to raise the argument. Random person doesn’t get to argue, “I’m mad that the state legislature’s right has been violated.”

                1. In addition to being dumb, it’s completely ahistorical. Every single state’s election laws have been enacted via presentment. And have been interpreted by the courts millions of times for centuries. At no point has anyone suggested that the governors or courts had no role to play and that the laws were in force the minute they issued from the state legislature and could not be interpreted. (Indeed, the last of those is something only an idiot could argue.)

          2. No, both are self-interested motivations for Trump: If he doesn’t pull off a win this year, he might very well run in 2024. And if he does, he very much has to care if he’s going to face all sorts of election laws being waived in favor of Harris.

            1. I think he, for now, has the inside track to being the Republican nominee again in 2024 if he wants to be (and remains alive and healthy enough). And I think the motivation for the litigation might possibly contemplate that – but as part of the show I referred to and reinforcing a narrative, not as a sincere effort to get judicial relief.

              1. I think it’s both a show and a sincere effort to get relief.

                But a severely handicapped sincere effort. I think his time in business, where if you pay a lawyer they generally stay bought, didn’t prepare him for how dirty politics was. And so he didn’t do the work of making sure he had legal representation that actually wanted him to win.

                Nor did he expect his legal representation to end up personally threatened and try to drop him as a client in the middle of litigation.

                By the time he knew what was going on, it was really too late to undo the damage.

                1. You ever notice how you make an assumption, perhaps small, that completely changes a narrative in order for it to be more in line with your existing world views and bias?

                  You keep assuming that the many lawyers who have quit on Trump did so because of personal threats.

                  I have not seen anything that suggests that this is why they quit. I think threats are part of the package of taking a controversial political figure like Trump as a candidate, and unlikely to scare off these firms. I think they are quitting on Trump for much the same reasons that law firms used to quit on Trump earlier in his presidency and in his private life: he demands ridiculous actions from his attorneys that threatens their standing with courts and Bar associations.

                  1. I asserted that they were personally threatened, and that they then tried to quit representing him. You’re free to assert there’s no cause and effect there, but both did happen.

                    1. In the cases with which I am familiar, the precipitate for withdrawal was more (1) the opinions of other lawyers in the relevant firms, who did not wish to be associated with such flagrant, public asshattery and (2) observation of some of the ridiculous legal actions being advanced by other Trump-related litigants, and a desire not to have reputations wrecked by perceived association with those reckless litigants.

                      I oppose some of the “personal” stuff, such cluttering a lawyer’s professional email account with multiple daily pizza and oil change specials hundreds or thousands of miles away, but I sense (1) that problem was limited and (2) those antics did not cause any lawyers’ withdrawals. The reputable lawyers who departed seemed to leave because they did not want to ride a crazy train.

                2. The best — and most of the competent, experienced — Republican election lawyers declined to participate in Trump’s kooky crusades.

                  Trump is losing (everywhere) for the same reason good Republican lawyers wouldn’t participate — because his legal arguments are silly, unsupported by evidence, and plainly motivated by bad faith.

              2. ” I think he, for now, has the inside track to being the Republican nominee again in 2024 if he wants to be (and remains alive and healthy enough). ”

                Don’t forget the ‘not in prison’ part. Trump is beginning to provide indications that he might aggravate enough people toward the end of his presidency to generate legal proceedings aimed at bankrupting and incarcerating him.

                1. I agree there is a “not in prison” part in the sense that he would have an uphill battle winning the nomination from a cell, but it wouldn’t be disqualifying.

        2. it can be worth spending an awful lot of other people’s money on a long-shot chance at 4 more years in the White House.

          Actually, it seems to be a profitable undertaking. Maybe the most successful con Trump has run.

      2. On December 3, a congressional candidate from Pennsylvania filed an emergency application with the Court.

        The case on which the article is focused is not about the presidential election and the Trump campaign’s legal strategy has nothing to do with it.

        1. You are misinformed and/or ignorant. The documents are publicly available.

          1. I’m misinformed? What part of ” congressional candidate from Pennsylvania filed an emergency application with the Court” do you not understand?

            1. The part where you don’t understand that the claims related to the presidential election as well.

              1. No, I understand that, but since the emergency petition was not brought by the Trump campaign it still has absolutely nothing to do with the Trump campaign’s litigation strategy.

      3. I have no doubt that many people have sincere concerns relating to this election and that some plaintiff’s have brought challenges in good faith believing they had meaningful chances of getting substantive relief.

        Alleging that hundreds of ballots were improperly cured, so the court should throw out hundreds of thousands of unrelated votes and award the election to your candidate is not “good faith” by any meaningful definition.

        And while that was specifically PA, you see a similar pattern throughout their cases: they publicly allege a major complaint, but the moment they’re in the court room they only talk about minor complaints but still ask for drastic actions (aka, throwing out the entire election and awarding electoral votes to Trump).

        That’s not good faith. It’s just forcing the courts to participate in your money beg.

        1. Yes, I think much of what the Trump campaign has done with recent election litigation hasn’t been in good faith. But that doesn’t mean that other plaintiffs haven’t acted in good faith.

      4. Other than trials set up for the express purpose of challenging what is thought to be an unjust or illegal law (like the Scopes trial, which apparently was totally manufacturing for the purpose of challenging a Tennessee law prohibiting the teaching of evolution) legal actions are not supposed to be for ‘show’. Lawyers who use the legal system for that purpose deserve to be sanctioned.

        1. Sure. I should have made (and meant to make) the point more explicit that the actions of the Trump campaign’s litigators call into question, for me, their integrity more so than their competence.

    2. Mike Kelly actually did win his race, which makes this lawsuit even more astoundingly stupid.

      1. And you cannot fix stupid – Ron White

        1. True. But you should at least be able to sanction them.

          1. We have not reached that stage of the proceedings yet.

            But it is coming.

            1. One can only pray to Jesus that is true.

              1. Or you could apply reason to the available information. Some people think that works even better than superstition.

                1. Soap is not superstition, you ought to try believing in it. People might not take deep breaths before passing through your miasma were this the case.

    3. First they decided to wait until after the election to contest the process, figurng if they won they would not need to. So the Penn Court is not so stupid as to not understand this. Result: Laches!!

      If they had contested it before the election, it would have been thrown out for lack of standing. After all, no “damage” has occured yet. Therefore, no standing. Therefore, they have to contest it after the election. PA Court is trying a Catch 22.

  4. I may well be missing the point, but ….. huh ?

    Isn’t the Electoral Count Act about Presidential Electors, and isn’t this case that Alito is considering about a Congressional election ?

    I appreciate that if SCOTUS were to nuke lots of mail in ballots pursuant to the Congressional election case, that might have implications for how any similar case brought by Trump might be decided.

    But if the Congressional election case is before Alito, not a Presidential election case, why would he take into account deadlines that might be interesting or relevant for a case that isn’t before him ?

    1. From the emergency application:

      “1. Do the Elections and Electors Clauses of the United States Constitution permit Pennsylvania to violate its state constitution’s restrictions on its lawmaking power when enacting legislation for the conduct of federal elections?
      Do the First and Fourteenth Amendments to the U.S. Constit
      ution permit the dismissal of Petitioners’ claims with prejudice, on the basis of laches, where doing so foreclosed any opportunity for Petitioners to seek retrospective and prospective relief for ongoing constitutional violations?”

      The relevance to Trump’s challenges are obvious; If they find in this petitioner’s favor, they can hardly justify stiffing Trump, and the precedent would have immediate application to ongoing state litigation.

      So, delaying this until after the safe harbor denies Trump any benefit if they rule in favor of THIS petitioner, though the precedent would be valid for future elections.

      1. Were either of those allegedly federal questions presented to the Supreme Court of Pennsylvania?

        1. You’ve got me. But they’re certainly relevant to whether Trump has a valid legal complaint about the conduct in PA, as well as several other states.

        2. Yes but the Pennsylvania Supreme Court ruled on the laches issue so the rest of the complaint was not considered. There was also a provision in the Penn law about filing an objection to the law, which was passed in October 2019, about a 180 period in which to object. But the Plaintiffs of course like other arrogant litigious folks who think the law doesn’t apply to them because they are on a mission from God waited until past that deadline.

          In short, the legislature put potential litigants on notice that if you wanted to object, do it soon so the election can go forward under a set of rules (as written or as changed by the courts) everybody knows and accepts, and the litgants thumbed their nose at that idea. Regardless of the merits of their case, they get what they deserved, utter contempt.

          1. The legislature also put the state courts on notice that if any part of this law was struck down, the whole law was void, that it was meant to be enforced precisely as written or not at all.

            The courts seem not to have cared about THAT notice, perhaps because it applied to THEM, and was a bit inconvenient.

            1. You still don’t grasp what an as applied challenge to a law is.

              (Although, oddly, now you seem to think that a law was struck down and yet you still keep claiming that the law was violated.)

          2. Strange how you debunk the wrong thing. The plaintiffs are arguing for the law to be enforced. The issue is the PA Court arbitrarily changed the deadline. The complaint is that the law’s deadline should be enforced, not the court’s deadline.

        3. I was very confident that this would be the SCOTUS’ ruling.

          My only question was whether Justice Alito would do it on his own or instead refer it to the entire Court to do. That he did it on it’s own is simply further confirmation of how utterly bogus the underlying case is, the guts of which were to challenge the PA supreme court’s interpretation of prior PA supreme court opinions (dating to 1923 and the Civil War era) on issues of purely PA law.

        4. The rest of the brief doesn’t track very well — barely at all, in fact — with the initial statement of issues quoted in this comment. It’s a badly flanged-together melange of dusty and off-point state-law precedents. Conspicuously absent is any hint that any federal court, ever, has granted the kind of relief sought, or any relief, on this kind of claim — which in fact relies entirely on PA state law, as interpreted by the PA supreme court, which is the final and dispositive authority thereupon.

    2. Plaintiff is going after all federal election results, including Presidential results. From the introduction (p.3):

      “Absent intervention by this Court, Respondents will complete the process of certifying the results of an election, and potentially cast electoral college votes for president and vice president, conducted in a manner which the Pennsylvania Supreme Court has long rejected as unconstitutional.”

      1. Yes, I see on closer inspection that there’s more than one petitioner and some of the petitioners are petitioning in their capacity as candidates for Presidential Elector.

        That makes more sense.

        1. “That makes more sense.”

          Not really. Did you read the ’emergency application’ presented to the Supreme Court yesterday?

  5. The Member of Congress seeking to delay certification was elected. How much of an emergency did his circumstance present? (Perhaps the defendants should stipulate that certification is to be withheld solely with respect to Rep. Mike “I Inherited A Business But Apparently Not Any Smarts” Kelly.)

    This litigation has been motivated by (1) a crackpot desire to disenfranchise millions of voters to flatter Republican fantasies and (2) a wish to continue to collect cash from the uninformed rubes who donate to wingnut causes.

  6. Damn liberal judges want to run out the clock.

    And this is proof that Alito truly is a RINO closet liberal.

  7. What happens if the response is filed early? Does the justice just sit on it and let the clock run out?

  8. I am pretty sure responding early would be grounds for disbarment

    1. Or perhaps we just enjoy watching them flail and fail?

  9. When Alito says
    clingers are hopeless losers
    the Party’s over.

    1. Perhaps if you were to learn to clean yourself properly, perhaps “clinger” wouldn’t be such a theme for your. You smell of monkey cages!

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