The Volokh Conspiracy

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How the Supreme Court Can Swiftly Dispose of the Texas Lawsuit Seeking to Overturn the Election [Updated]

The case is within the Court' original jurisdiction. But longstanding precedent still allows the Court to dismiss it without full consideration.


Flag of Texas.


Yesterday, the state of Texas filed a lawsuit essentially asking the Supreme Court to reverse the outcome of the presidential election in four key swing states—Georgia, Michigan, Pennsylvania, and Wisconsin, thereby potentially giving Donald Trump a second term he failed to win at the ballot box. The case has been roundly denounced by legal commentators as utterly lacking in merit. Prominent election law scholar Rick Hasen summarizes some of its defects and concludes that it may be the "the dumbest case I've ever seen filed on an emergency basis at the Supreme Court." Co-blogger Jonathan Adler points out a variety of procedural flaws in the case. David Post highlights its reliance on bogus statistical "analysis."

However, because this case is a lawsuit filed by one state against others, it falls within the Court's "original jurisdiction"—the narrow set of cases that can be filed directly in the Supreme Court, without first being considered by lower courts. Therefore, the justices may not be able to reject it in the same way as they just refused to hear a GOP lawsuit seeking to overturn the result in Pennsylvania.

At the same time, however, there is precedent for the Court dispensing with state vs. state original jurisdiction lawsuits without a full hearing or opinion. In 2016, that's exactly what the Court did with a lawsuit filed by Nebraska and Oklahoma seeking to force neighboring Colorado to rescind its legislation legalizing marijuana under state law. The justices disposed of the Nebraska-Oklahoma lawsuit in a one-sentence order. Here it is in all its glory:

The motion for leave to file a bill of complaint is denied.

Nothing prevents the Supreme Court from doing the same thing with the Texas case (which some other red states might sign on to). Like the Texas case, the Nebraska-Oklahoma lawsuit had no real merit and was roundly denounced by legal commentators across the political spectrum. I summarized its weaknesses and linked to critiques by others here. The justices apparently concluded it wasn't worthy of the Court's full attention, and acted accordingly.

In a dissent joined by Justice Alito, Justice Clarence Thomas argued that the Court lacks the authority to dispense with original jurisdiction cases in such a cursory fashion. I think he makes some good points, particularly that—unlike with virtually all other cases—cases within the exclusive original jurisdiction of the Supreme Court cannot be heard by lower federal courts, so SCOTUS is the only possible venue for them. But Thomas recognized that the Court's disposition of the marijuana legalization case was backed by longstanding precedent, under which the justices often dismiss bogus original jurisdiction cases without full consideration on the merits:

Federal law does not, on its face, give this Court discretion to decline to decide cases within its original jurisdiction. Yet the Court has long exercised such discretion, and does so again today in denying, without explanation, Nebraska and Oklahoma's motion for leave to file a co-plaint against Colorado…

[T]he Court has exercised discretion and declined to hear cases that fall within the terms of its original jurisdiction. See, e.g.,United States v. Nevada, 412 U. S. 534, 537–540 (1973) (per curiam) (controversy between United States and individual States); Ohio v. Wyandotte Chemicals Corp., 401 U. S. 493, 500–505 (1971) (action by a State against citizens of other States). The Court has even exercised this discretion to decline cases where, as here, the dispute is between two States and thus falls within our exclusive jurisdiction. See, e.g., Arizona v. New Mexico, 425 U. S. 794, 796–798 (1976) (per curiam). The Court has concluded that its original jurisdiction is "obligatory only in appropriate cases" and has favored a "sparing use" of that jurisdiction. Illinois v. Milwaukee, 406 U. S. 91, 93–94 (1972).

Since the Court issued this 6-2 ruling in 2016, three new justices have been appointed by Trump, including Neil Gorsuch who filled the seat vacated by the death of Justice Antonin Scalia a few weeks before the Oklahoma-Nebraska case was decided. If all three of the new justices support Thomas' position, the Court might not be able to dispose of the Texas case quite as easily. But even in that event, it could still deal with it in a short per curiam opinion, and does not necessarily have to go through extensive briefing and oral argument. There is no statute or constitutional rule requiring the latter.

In addition, I doubt that there will be a majority in favor of reversing longstanding precedent in this field. In an age of grandstanding state AGs, the Court might be inundated with numerous bogus state vs. state lawsuits if all had to be given full consideration, and thereby got the attendant "free" publicity. Blue states could challenge their neighbors' allegedly lax environmental and gun control laws. Red states could attack blue state laws on drugs and immigration (as Nebraska and Oklahoma did). Both sides could target election laws they disapprove of. And so on. Embattled Texas Attorney General Ken Paxton is far from the only poseur who might relish an opportunity to excite his base with a legally dubious high-profile case, if he or she could be assured of getting it into the nation's highest court. [see Update 3 below for an additional indication why Thomas' position is unlikely command a majority on the Court].

When the Nebraska-Oklahoma case came down, I suggested it might have been better if the Supreme Court issued at least a brief substantive opinion explaining why the lawsuit was without merit. It could even perhaps have been structured as an explanation for why the leave to file a complaint was denied. Perhaps the same thing should be done here. But, regardless, the Supreme Court need not take long in dispensing with this turkey. And I suspect they in fact will not.

UPDATE: It is perhaps worth noting that Thomas and Alito's position in favor of giving the Nebraska-Oklahoma case greater consideration probably was not an indication that they sympathized with the plaintiff states on the merits. Just two years later, Alito wrote the Court's opinion in Murphy v. NCAA, holding that the federal government had no power to force states to ban activities under state law, and Thomas voted with the majority. If the federal government lacks such authority, it is even more clear that one state cannot force another to do so.

UPDATE 2: I have made some minor changes in wording in this post.

UPDATE 3: Jonathan Adler points out that the Supreme Court again refused to consider a state vs. state original jurisdiction case earlier this year, in Arizona v. California. Thomas once more dissented on the same grounds as in the Nebraska-Oklahoma case, and Alito once again joined him. But it is notable that none of the other conservative justices did, including Trump appointees Neil Gorsuch and Brett Kavanaugh. This makes it even less likely that there will be a majority for Thomas' position (even assuming newly appointed Justice Amy Coney Barrett agrees with Thomas, which is by no means certain).