Circuit Justice Alito Walks Back De Facto Denial of Pennsylvania Emergency Appeal

Did Alito not recognize the significance of making the response due after the safe harbor date? Or did another justice threaten to dissent over the timing?


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.

Today, the Supreme Court modified its docket, and moved the response due date up to December 8 by 9 a.m.

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.

NEXT: Today in Supreme Court History: December 6, 1865

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Justice Alito
    revises briefing schedules
    if a colleague whines?


    1. I assume he does if they actually have any sort of basis for the whining. Schedule the briefing after the case is moot is a jerk move, you pretty much have to back down on doing it if called on it.

      1. It is not a jerk move if the case does not warrant a quicker schedule. The article noted 6 days is normal. The question is not the deadline but does the case warrant special treatment. If you come in with a bad case or present your case badly, the judge is under no obligation to give it special treatment.

    2. VC would be a lot more amusing if certain commenters (on both the far left and far right) could only post in haiku. Well done.

    3. Well done, Arthur. 🙂

  2. A third possibility is human error — that there is so much stuff coming out under such time pressure that human errors occur. It’s common to see what you think you see and not what is actually there.

    Case in point, Sidney Powell’s typos in one of the briefs she filed — I have no doubt that she both knows the proper name of a US District Court and how to spell it — and likely saw it the way it was supposed to be and not the way it actually was.

    Alito’s not stupid, but he is human — and well may have counted days wrong. Bleep like this happens when you are in a hurry and tired — and perhaps one of his colleagues (maybe one on the left if there any honorable ones) merely pointed this out and asked him if he was aware of it.

    1. Alito may have been alerted to the issue by any number of people (colleagues, appellants, family members) who saw the deadline discussed all over Twitter and decided he did not want the appearance of having issued a passive denial. Which would not rule out that he did it on purpose initially.

        1. I guess I might have counted them as colleagues, being an egalitarian sort of person. But yes, that’s another possibility.

    2. Sidney Powell’s typos in one of the briefs she filed

      What about the typos in all the other briefs she filed?

  3. Speaking of Dec. 8th, where is Crazy Uncle Rudy’s appeal from Judge Bibas’s bench slap from the 3d Circuit? They said “On to SCOTUS!” on Nov. 27. They must have been telling the truth, right? You’d think in an emergency, a competent lawyer would have appealed by now….

    1. Well, since he has Covid, it turns his lie into “Can’t do it due to illness.”

      I am working really hard not to have schadenfreude about his diagnosis. He’s an awful human being and has become a real pile of shit. But . . . Covid seems to be (for the small percentage who are hit hardest) really brutal. And that’s something I would not wish on my worst enemy.

      So, Rudy; I do wish you a speedy recovery, and may you have many more years to lie, spew crazy rants, attempt to have sex with minors, and everything else you’ve become (in)famous for post 9/11.

  4. If originalism is basically an exercise in mind-reading the purported thoughts of people who have been dead for two centuries, at least this is just an exercise in mind-reading the purported thoughts of someone who is still alive. An improvement, but not by much.

    1. 1. If originalism is basically an exercise in mind-reading the purported thoughts of people who have been dead for two centuries

      It isn’t. It’s an exercise in puzzling out what the words they wrote down meant, when they wrote them down. A task we all attempt whenever we read a book.

      2. an exercise in mind-reading the purported thoughts of someone who is still alive

      A task we attempt dozens of times every day.

  5. Perhaps in a case where the decision appealed from is based on “laches” – the notion that dilly dallying about making your claim is a sin sufficient to forfeit your whole case – there might be a perception that SCOTUS might appear a little whimsical if it were to dilly dally its judgement past an important deadline.

  6. The PA constitution plainly describes how PA electors are permitted to cast their ballots: in-person and absentee. And absentee is well-defined to mean “I have a serious reason for not being able to make it to my polling place on election day.” PA Act 77 of 2019 adds a third method by which Pennsylvanians can vote, mail-in, so it is unconstitutional on its face.

    The hilarity of the situation is that this unconstitutional act, which created the mail-in ballot fiasco that sunk the Trump campaign, was considered a Republican bill and was voted Yea by all 28 PA Senate Republicans and Nay by 20 of the 22 Senate Democrats, and in the House was voted Yea by 105 of the 109 Republicans.

    Net-net: Republican dumb-asses rammed thru an unconstitutional law that was used against them! There is a God.

    1. The PA constitution does not “plainly” do any such thing. It says that a voter is eligible if s/he “resided in the election district where he or she shall offer to vote at least 60 days immediately preceding the election.” That does not “plainly” say that a person must vote in person. It’s a possible interpretation, but not an overly compelling one.

      And then it says that the state must provide for absentee voting for certain groups of people. It does not “plainly” say that this list operates as a ceiling, as opposed to floor, for absentee voting. Again, it’s a possible interpretation, but not an overly compelling one.

      1. “That does not “plainly” say that a person must vote in person.”

        “It does not “plainly” say that this list operates as a ceiling, as opposed to floor, for absentee voting.”

        So, what, you want the constitution to read like the Holy Hand Grenade of Antioch gag in Monty Python and The Holy Grail?

  7. Justice Alito’s walk back bring up the a concern about the effect of political pressure on judges. The Trump campaign has failed to demonstrate any real fraud. Trump Administration officials have stated the election was secure and that there is not evidence of significant fraud (yes, you can always find the occasional double voter). All this means that the President is looking for any way to move from an election to an appointment process. It is important for election officials at state and local levels and for judges to stand fast. Many have done this. They have been criticized and threatened. Did Justice Alito do that here, did he succumb to pressure?

  8. Poor Mr. Alito. He has to decide between his unlimited allegiance to the Republican Party and Trump, or to adherence to principles, particularly conservative principles.

    Absent a Constitutional issue like discrimination, a basic tenet of law, particularly conservative law is that state issues are decided by state courts. Like it or not, the Penn Supreme Court is the final interpreter of Penn law and the Penn constitution. Of course, so-called modern conservatives only like it when it goes their way. When it does not go their way modern (as oppoosed to true) conservatives abandon principles as fast as they can.

    So let’s see what Alito is made of. My guess, behind false veneer of Alito’s principles is the true veneer of his principles. (see Fred Allen)

  9. Circuit Justice Alito? I’m confused. Samuel Alito on the Supreme Court is an Associate Justice, no? Is there another Judge Alito serving on a Circuit court?

    1. I would assume it’s to indicate that he was acting in his role of presiding over the Circuit rather than in making a decision of the Supreme Court itself. As Circuit Justice, the justice has the power to act unilaterally on certain things rather than being one vote of nine.

  10. When there is a critical date before which a petition or emergency appeal of this nature must be acted, it is customary for the petitioning party to highlight that date in the petition or appeal. (I’ve never worked at SCOTUS, but that was the case at the appellate court at which I worked.) The justice, clerk, or staff attorney reviewing the matter would look at that document to determine whether an accelerated briefing schedule is warranted. Here, unless I missed it, the emergency application (a link to which appears in Josh’s post) makes no mention of a critical date of December 8, which in my view is borderline malpractice by the attorney filing the document. Without any mention of a critical date, it was understandable that Justice Alito initially asked for briefing by December 9 and then corrected it, and I doubt that the correction indicates a disagreement among the Justices on its merits.

  11. “borderline malpractice” is being extremely kind to these attorneys. Stupid and incompetent beyond belief is probably more accurate, but then you seem like a better person than I.

    1. And to further belabor the point, this time it is Rudy and friends in Georgia, from the AJC

      “Last week, President Donald Trump’s lawyers announced a new lawsuit with blockbuster allegations they said would prove massive voting fraud in Georgia.

      But on Monday Fulton County Superior Court rejected the lawsuit because the attorneys didn’t pay the proper filing fee or fill out the paperwork correctly.”

      But to be fair, one of the attorney’s involved was Rudy.

Please to post comments