The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Thursday, I blogged about Circuit Justice Alito's de facto denial of an emergency appeal from Pennsylvania:
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.
Justice Alito moves up response deadline to Rep. Kelly's emergency application to #scotus of Pa Supreme Court ruling to Tuesday morning. Election law experts had noted original deadline of Wed was after "safe harbor' deadline https://t.co/PHX5MTElps
— Robert Barnes (@scotusreporter) December 6, 2020
What happened here? I can think of two options. First, Circuit Justice Alito didn't realize the significance of setting the response due after the safe harbor date. In other words, he did not recognize that this deadline a mounted to a de facto denial of the application. I think this option is unlikely. Alito is a sharp guy. This could not have evaded his review. Second, Circuit Justice Alito realized the significance of that date, and didn't care because the application was frivolous, but another Justice objected. For example, another Justice internally said he would dissent from the Court's order because the petitioner was not even able to fully brief the case before a statutory deadline. Right or wrong, I think that the Circuit Justice should not use the standard six-day deadline when there is a statutory deadline at play. The shadow docket needs some transparency.
We should get a ruling late in the evening of December 8, perhaps with a dissent.